New Delhi, October 27 (Reuters): The Supreme Court Wednesday appointed a 3-member panel of cyber experts to probe the alleged use of Israeli spyware Pegasus for surveillance of certain people in India, saying that the state cannot get a ”free pass” every time the spectre of national security is raised and it cannot be the “bugbear” that the judiciary shies away from.
In one of the significant verdicts in recent times over the issue of citizens’ right to privacy, a bench headed by Chief Justice N V Ramana said that mere invocation of national security by the state cannot render the judiciary a ”mute spectator” and asserted that indiscriminate spying on individuals in a democratic country cannot be allowed.
The bench appointed the panel, to be monitored by former apex court judge R V Raveendran, in response to the 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.
“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, liberties, and freedom,” the apex court order said.
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.
The bench referred to the allegations that the Centre or state governments are party to the rights’ deprivation of the citizens while declining the vehement submission of the central government to permit it to appoint an expert panel on its own, saying such a course would violate settled judicial principle against bias as “justice must not only be done, but also be seen to be done”.
“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,” it said.
”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,” it said.
The top court referred to the freedom of the press and speech and said that the media is an “important pillar” of democracy and 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.
“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, adding that it was “compelled to take up the cause to determine the truth and get to the bottom of the allegations made herein”.
The bench listed out “compelling circumstances” which weighed with it while ordering the probe.
“The entire citizenry is affected by such allegations due to the potential chilling effect,” it said, adding that no clear stand was taken by the Centre regarding actions taken by it.
The top court urged its Justice Raveendran to oversee the functioning of the expert panel and sought a report expeditiously from the committee which has been given wide powers to “enquire, investigate and determine” whether Pegasus spyware was used in snooping citizens.
It 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 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 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, the bench said.
”If the Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different,” the bench said.
Such a course of action taken by the Centre, especially in proceedings which touches upon the fundamental rights of the citizens of the country, cannot be accepted, it said.
”The Union of India 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. 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 bench said.
The apex court said the petitioners have placed on record certain material that prima facie merits consideration by this court and there has been no specific denial of any of the facts by the Centre.
”There has only been an omnibus and vague denial in the ‘limited affidavit’ filed by the 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,” the bench said.
The apex court said the Centre has already been given multiple opportunities and looking at its conduct of not placing on record any facts on the ground of “national security”, no useful purpose would be served by directing the Cabinet Secretary to put certain facts on an affidavit apart from causing a further delay in proceedings.
”Instead, we are inclined to pass an order appointing an Expert Committee whose functioning will be overseen by a retired Judge of the Supreme Court.
”Such a course of action has been adopted by this Court in various other circumstances when the Court found it fit in the facts and circumstances of the case to probe truth or falsity of certain allegations, taking into account the public importance and the alleged scope and nature of the large scale violation of the fundamental rights of the citizens of the country,” the bench said.
The top court said that in this world of conflicts it was an extremely uphill task to find and select experts who are free from prejudices, are independent and competent, rather than relying upon any government agencies or any private entity.
”We make it clear that our effort is to uphold Constitutional aspirations and rule of law, without allowing ourselves to be consumed in political rhetoric,” the bench said, adding that this court has always been conscious of not entering political thicket.
An international media consortium had reported that over 300 verified Indian mobile phone numbers were on the list of potential targets for surveillance using Pegasus spyware.
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