By Satyaki Chakraborty
The Supreme Court bench led by the Chief Justice N V Ramana will be considering on February 25 the interim report submitted to the apex body by the technical committee set up by the CJI through his order given on October 27 last year to go into the allegations of surveillance using Pegasus software, supposedly by the government agencies. The 12 petitions filed on this issue will come up for hearing also.
The SC bench appointed former Justice R V Ravindran to oversee the functioning of the technical panel, and two other experts were also appointed to assist the panel. Since the allegations had serious dimensions of freedom of expression and rights on the privacy of an individual, the CJI made all efforts to ensure that the panel comes out with findings that will help the bench in arriving at its conclusion.
The most important terms of reference are whether Pegasus was used on phones or other devices of citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated. The technical committee has worked on that and tried to get confirmation from the affected individuals. Sources say that the response has not been widespread, but the committee has made observations on the basis of whatever materials, they have been able to get hold on.
The core issue in the hearing will be who hired the Pegasus spyware and whether that was used for the spying on the individuals by the official agencies and if so why? The Centre during the earlier hearings took the issue of national security to stonewall the queries made by the bench but now, at the hearing, the centre will have to reply to the exact points made in the interim report. Solicitor General Tushar Mehta, who has been representing the Narendra Modi government on this sensitive issue, took two days extra to prepare himself for the hearing next Friday instead of February 23, which was originally fixed by the CJI.
The report by the technical committee is only interim, and the committee has sought more time for giving the final report. It is expected that the Supreme Court will allow that. The moot question will be whether the technical panel has been able to find out who hired the Pegasus and for what. This will be the central issue since all petitions are alleging that the Pegasus spyware can be hired only by the government and that is what the owner Israeli company also has mentioned, though specifically India has not been named.
It is recalled that The New York Times put the Narendra Modi Government on the dock, last month by reporting that India officially bought Israeli spyware Pegasus as a part of the composite defence deal during the visit of Prime Minister Narendra Modi to Israel in July 2017. For the last six months, since the report about the surveillance by the spyware on Indians, including politicians, journalists and human rights workers appeared in the media, the centre consistently denied the involvement of its agencies. The civil society activists, including the journalists, had to finally seek the intervention of the Supreme Court to probe this highly sensitive issue affecting the rights and privacy of the individuals. The apex court finally agreed to set up an expert committee in its order of October 27 last year.
As regards the Pegasus issue, the entire focus is on the Prime Minister, the PMO, and the National Security Adviser. It is not so much to do with the BJP as a party, but it is to do with the Prime Minister and the agencies on which he has full control. The Supreme Court observations meant that the judges had no belief in what the Government lawyers told them about denying a detailed affidavit to the Court on the plea of national security. The NYT report now shows how the Government continuously told lies to the media and the people. It is to be seen whether the SC bench considers the NYT report also in the course of the hearing on February 25.
In July last year, at the peak of this Pegasus controversy in Parliament when most of the days, the Prime Minister was not present in the house, the Union IT Minister said that the report on Pegasus surveillance on Indians at the instance of a government agency was a sensational attempt to malign Indian democracy and its well-established institutions. He then made the point that the Israeli company NSO rubbished the reports in the Indian press. But the fact is that NSO officials, even at that time, said that their services are utilised at government levels only.
In the name of national security, the Modi government has arrested several rights activists and they are suffering in jail for months and years. The UAPA provisions are being imposed on anyone who challenges the present government. Criticism of the government is being taken as a criticism of the nation. In this milieu, the Supreme Court, through its last Pegasus order, came out strongly against the Modi Government’s continuing stance on privacy issues by citing national security.
The CJI observed on October 27 “The state cannot get a free pass every time by raising national security concerns. No omnibus prohibition can be called against judicial review. The centre should have justified its stand here and not render the court a mute spectator.”
In its order at that time, the SC underlined the importance of privacy and technology, saying that while technology can be used to improve the lives of people, it can also be used to invade privacy. It said certain limitations exist when it comes to privacy, but the restrictions have to pass constitutional muster. The February 25 hearing is a sort of test for the Supreme Court on its constitutional responsibilities. (IPA Service)