New Delhi: The Supreme Court on Wednesday set up a 3-member independent expert panel to probe the alleged use of Israeli spyware Pegasus for targeted surveillance in India, observing the state cannot get a "free pass" every time the spectre of national security is raised and that its mere invocation cannot render the judiciary a "mute spectator" and be the bugbear it shies away from.
In a significant verdict over the issue of protecting citizens' right to privacy that was welcomed by legal experts, a bench headed by Chief Justice N V Ramana asserted that in a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards by following the procedure established by law under the Constitution.
Stating that it was compelled to take up the cause to determine the truth and get to the bottom of the spying allegations, the court said the entire citizenry is affected by these charges due to the "potential chilling effect", lamenting that no clear stand was taken by the Centre regarding actions taken by it over the Pegasus row.
The court then went on to list the compelling circumstances which prompted it to order the probe, noting the petitioners in the Pegasus spyware case have placed on record certain material that prima facie merits consideration by this court and that there has been no specific denial of any of the facts by the Centre.
The top court also referred to the freedom of the press and speech and said the media is an important pillar of democracy and that the task of the judiciary in the present matter assumes great significance with regard to the importance of protection of journalistic sources and the potential chilling effect that snooping techniques may have.
Former apex court judge R V Raveendran, 75, will monitor the probe by the technical panel whose members are experts in cyber security and digital forensics.
Justice (retd) Raveendran, who has been part of benches which heard major cases such as the row over quota for OBCs in central universities, the 1993 Mumbai serial bomb blasts and the Krishna-Godavari basin dispute over natural gas, would be assisted by former IPS officer Alok Joshi and cyber security expert Sundeep Oberoi.
The technical panel comprising Naveen Kumar Chaudhary, Prabaharan P and Ashwin Anil Gumaste was constituted in response to pleas seeking investigation into the alleged widespread and targeted surveillance of politicians, journalists and activists, among others using the Israeli firm NSO's Pegasus spyware.
The expert panel will have the power to enquire, investigate and determine whether the Pegasus spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes and the details of the victims and/or persons affected by such a spyware attack, the court said.
Legal experts described the verdict as the watershed moment and said it will go a long way in giving a warning signal to the government that they cannot spy on citizens in the garb of national security.
"The judgment is truly historic and is a watershed moment in the history of India's Supreme Court because it has not only stood behind the citizens who have complained of illegal and unconstitutional spying but has also ordered a comprehensive inquiry into the allegations," said senior advocate Dushyant Dave.
While Congress leader Rahul Gandhi said the "use" of Pegasus spyware was an attempt to crush Indian democracy and that the Supreme Court order is a "big step" that will help bring out the truth, BJP spokesperson Sambit Patra said it is in line with the government's affidavit on the spying row.
Gandhi said the Supreme Court's opinion "basically supported" what the Opposition parties had been saying and they will again raise the issue in Parliament demanding a debate on it.
The opposition had disrupted proceedings during the last monsoon session with vociferous protests over the Pegasus issue after an international investigative consortium claimed that many Indian ministers, politicians, activists, businessmen and journalists were potentially targeted by the Israeli company NSO Group's phone hacking software.
Rejecting the vehement submission of the central government to permit it to appoint an expert panel on its own, the top court said such a course would violate settled judicial principle against bias as "justice must not only be done, but also be seen to be done".
Members of a civilized democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices...
We live in the era of information revolution, where the entire lives of individuals are stored in the cloud or in a digital dossier. We must recognize that while technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach that sacred private space of an individual."
Writing the 46-page order for the bench, the CJI though acknowledged the issue of national security, the power of the authorities and limited scope of judicial review in such matters and said, however, this does not mean that the state gets a free pass every time the spectre of national security is raised.
National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching the domain of national security, no omnibus prohibition can be called for against judicial review, said the bench, which also comprised Justices Surya Kant and Hima Kohli.
The government must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns, it said.
They must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator."
The court also said its effort is to uphold the Constitutional aspirations and rule of law without being consumed in the "political rhetoric" even as it observed that petitions seeking independent probe into alleged snooping row raise an Orwellian concern, about the alleged possibility of utilising modern technology to hear what you hear, see what you see and to know what you do.
"If you want to keep a secret, you must also hide it from yourself," it said quoting English novelist George Orwell.
"Orwellian" refers to a dystopian, totalitarian state which is destructive to the welfare of a free and open society.
The court also said it is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights.
Such a scenario might result in self-censorship. This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the vital public-watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information, it said,
It then posted the batch of pleas in the matter, including the ones filed by Editors Guild of India and veteran journalists N Ram and Sashi Kumar, for further hearing after eight weeks.
The bench said it gave ample opportunity to the Centre to clarify its stand on the allegations raised and the various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware attack.
Despite repeated assurances and multiple opportunities given, ultimately the Union of India has placed on record what they call a limited affidavit, which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand, it said.