Interim Order in Plain English: Pegasus

The petitioners in the case alleged that mobile phones had been intercepted using Pegasus spyware. The developers of Pegasus claim that they only sell their programme to governments. The petitioners sought a judicial investigation to determine if the Union used Pegasus spyware to intercept their private communication.

The Supreme Court (SC) heard the matter between August 16th – September 13th, 2021. On the last date of hearing the Bench reserved their order which was finally delivered on October 27th, 2021. The Bench constituted a Technical Committee overseen by former Supreme Court Justice R.V. Raveendran to investigate the issue. 

Right to Privacy

The Bench clarified that the right to privacy could be traced back to the right to life. The Bench stated privacy must be protected, as held in K.S. Puttaswamy v Union of India (2018) which declared privacy to be inalienable to human dignity and autonomy.

Puttaswamy recognised some restrictions on the right to privacy to balance competing interests. However, the Pegasus Bench emphasises that any means adopted under any law to encroach upon the right to privacy must be proportional to the purpose of the law. 

The importance of surveillance for intelligence gathering and the need to possibly interfere with an individual’s privacy is acknowledged, so long as there are sufficient statutory safeguards. The Bench cited Daniel Solove:

“…protecting privacy need not be fatal to security measures; it merely demands oversight and regulation. We can’t progress in the debate between privacy and security because the debate itself is flawed.”

Freedom of Press

The Bench calls the concerns of privacy and freedom of press ‘allied’. If an individual believes they are being spied on, then there is a threat of self-censorship, which is an ‘assault’ on the fourth pillar of democracy (the press). 

The Bench highlights the ‘chilling effect’ such surveillance would have on free speech and the freedom of the press. Further, they state that journalistic sources must also be protected. These two considerations serve as the basis for the Court deciding to hear the matter.

The Unions ‘Limited’ Response And National Security Concerns

The Union of India, in response to the allegations of illegal surveillance, submitted what the Court called a ‘limited affidavit’. This affidavit doesn’t clarify the Union’s position in the matter or the facts of the case. The Bench did not accept this as the present case deals with citizen’s fundamental rights. 

In Ram Jethmalani v Union of India (2011) the Court held that the State’s primary burden is to protect fundamental rights and cannot be an adversary. The State has a duty to reveal all the facts and information in its possession to the Court and the petitioners.

The judgment in Ram Jethmalani provides exceptions which allow certain information to be withheld, including for national security concerns. While the scope of judicial review in these instances is limited, the Bench stated that the Union Government cannot get a ‘free pass’ by invoking national security. They must prove why divulging the information sought would affect national security. 

Constituting A Technical Committee

The Bench appointed a Technical Committee, to be overseen by former Supreme Court Justice R.V. Raveendran. This Committee must investigate and determine whether Pegasus was used to snoop on Indian citizens, who acquired it and whether it was done lawfully. They must also make recommendations on improving the nation’s cybersecurity and measures to protect citizen’s right to privacy and provide grievance redressal mechanisms in cases of illegal surveillance. 

The Union had pleaded to constitute their own Committee to investigate the allegations, but this was rejected citing concerns of bias. 

Former IPS Officer, Mr. Alok Joshi and the Chairman of the International Organisation of Standardisation, Dr. Sundeep Oberoi have been tasked with assisting Raveendran J in overseeing the Committee.

The Court appointed Technical Committee includes:

1. 1. Dr. Naveen Kumar Chaudhary – Professor and Dean, National Forensic Sciences University in Gandhinagar, Gujarat;
   2. Dr. Prabaharan P. – Professor, School of Engineering, Amrita Vishwa Vidyapeetham in Amritapuri, Kerala
   3. Dr. Ashwin Anil Gumaste – Institute Chair Associate Professor, IIT Bombay in Maharashtra