Making Clear that the state cannot get “a free pass every time the spectre of ‘national security is raised,” the Supreme Court on 27 October 2021, ordered a thorough inquiry into allegations of unauthorized surveillance using the Israelin MOS’ Pegasus spyware.
The Court said that the investigation will be carried out by a three-member technical committee appointed by the court. Justice RV Raveendran, a former Supreme Court judge, will direct its operations, aided by two other specialists. The committee has been directed to complete the investigation and submit its report to the Supreme Court as soon as possible. The case is to be re-heard after eight weeks.
Ruling on a batch of 12 petitions which sought an independent probe into the alleged illegal use of the Israeli NSO Group spyware Pegasus, the bench of Chief Justice NV Ramana, Justices Surya Kant and Hima Kohli said, ‘The petitioners have placed on record certain material that prima facie merits consideration by this court. There has been no specific denial of any of the facts averred by the Petitioners by the Respondent – Union Of India. There has only been an omnibus and vague denial in the ‘limited affidavit’ filed by the Respondent – Union Of India, which cannot be sufficient. In such circumstances, we have no option but to accept the prima facie case made out by the Petitioners to examine the allegations made.” (Reported in The Indian Express.)
Press reports on the order include those of mainstream dailies such as the The Hindu – ‘The Supreme Court order instituting an independent probe into the possible use of Israeli spyware Pegasus is an effective intervention to protect citizens from unlawful surveillance and a stern rebuff to the Government’s attempt to cover up the issue by using the bogey of ‘national security. It was clear from day one, following the revelations that nearly 300 of some 50,000 phone numbers allegedly identified for surveillance belonged to Indians, that the Government would choose to brazen it out rather than hold or facilitate a credible inquiry.’
During the hearing, the Centre had filed a brief affidavit ‘unequivocally’ denying the allegations against it and said the matter involved national security questions. It did not wish to put the details in a public affidavit and make it a matter of public debate. It said it would divulge the details to a committee of experts who would examine the issue. It urged the court to allow it to set up the committee.
But the bench, in its order, said it is turning down the Government’s request to allow it to set up the committee due to allegations that the Union or state governments are parties to the rights’ deprivations of citizens. It said allowing the request “would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done but also be seen to be done.”
Supreme Court key fundamental imperatives
The Supreme Court underlined the three key imperatives – the right to privacy of citizens, freedom of the press, including journalists’ right to ensure the protection of their sources, and the limits of national security as an alibi by the Government to block disclosure of facts related to citizens rights. The three-judge bench flagged that its intervention is to ‘uphold the constitutional aspirations and the rule of law without being consumed in political rhetoric.’
On the governments refusal to file a detailed response to the allegations made by the petitioners, the court cited the 2011 landmark ruling on black money in Ram Jethmalani vs Union of India to say the government ‘should not take an adversarial position when the fundamental rights of the citizens are at threat.’
“This free flow of information from the petitioners and the state in a writ proceeding before the court is an important step towards Governmental transparency and openness, which are celebrated values under our constitution,” the court is quoted as having said in a report by The Indian Express.
