The Supreme Court appointed a special committee to investigate allegations of snooping—involving the spyware Pegasus. And in doing so, it strongly upheld a citizen’s right to privacy—and knocked down the government’s arguments about national security. Here’s a quick overview of the ruling, and what it hopes to achieve.
The investigation: Back in July, Paris-based media non-profit Forbidden Stories and Amnesty International accessed a global database of more than 50,000 phone numbers—which may have been targeted by a powerful spyware tool called Pegasus. It shared these numbers with media organisations—which helped identify the names attached to these numbers. Amnesty’s Security Lab conducted forensic analysis on 67 smartphones, of which 23 were successfully infected and 14 showed signs of attempted hacking.
The India findings: The 1000 Indian numbers included phones of 40 journalists, three opposition leaders, serving government ministers and businesspersons. The biggest name on the list: Rahul Gandhi. Forensic analyses were performed on 22 smartphones whose numbers appeared on the list. Of these, there is clear evidence that at least ten were targeted with Pegasus—of which seven were infected. These included the phone of Prashant Kishor, who is Mamata Banerjee’s campaign advisor.
Point to note: We have done three detailed explainers on Pegasus. Read about the global investigation, the India angle and the Israeli company NSO which sells Pegasus to foreign governments.
The revelations triggered a number of petitions seeking an independent probe into the evidence of snooping. The Supreme Court took them up only after citizens whose phones had been hacked approached the court. The judges then demanded a reply from the government—which filed a vague, two-page affidavit, which:
Also this: The affidavit also attached the government’s response in Parliament which claimed “the time tested processes in our country are well-established to ensure that unauthorised surveillance does not occur.” Why this matters: The government has not once issued a clear, unequivocal statement that it did not use Pegasus to spy on citizens.
Point to note: The Court was not satisfied with the affidavit, and asked the government to issue a more detailed clarification—which it flatly refused to do on the ground of national security.
The bench was led by Chief Justice NV Ramana who led with a quote from George Orwell’s famous novel ‘1984’: “If you want to keep a secret, you must also hide it from yourself.” And it set the tone for the ruling that followed. The Court raised three key concerns:
One: The right to privacy: “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.” Also this:
“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.”
Two: The freedom of the press. Having noted that the right to privacy is not limited to journalists or activists alone, the Court also emphasised its critical connection to the media:
“Such chilling effect (alleged surveillance) 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.”
Three: The indiscriminate use of national security to justify government actions. The ruling declared, “The mere invocation of national security by the state does not render the court a mute spectator”—and added:
“[The government does not] get 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.”
Point to note: The judges also took direct aim at the affidavit filed by the government, noting: “There has been no specific denial of any of the facts averred by the petitioners by the… Union of India. There has only been an omnibus and vague denial in the ‘limited affidavit’... which cannot be sufficient.”
The judges flatly turned down the government’s offer to set up its own committee, saying “such a course of action would violate the settled judicial principle against bias.” So it has constituted its own panel headed by former Supreme Court Justice RV Raveendran—who has an established record of ruling on matters of constitutional law. The other members include:
The aims: The committee has been tasked with finding answers to the following questions:
The good news: is that the Court has asked the committee to go beyond investigating the matter at hand—and also look at the big picture. Members will scrutinise existing surveillance laws and procedures—and see if they do enough to protect the right to privacy. And they’ve been asked to recommend reforms to ensure the government does not violate that right—including creating a “mechanism” to raise citizen complaints.
The big but: Supreme Court committees don’t always lead to actual results. One reason is that the government in power invariably refuses to cooperate—especially when it is the target of the probe. And internet freedom activists remain pessimistic. The Internet Freedom Foundation notes that the SC committee to look at the farm laws has been in limbo for nine months. Despite being given a two-month deadline, it has yet to produce a report—at least none that have been publicly shared.
Also this: MediaNama’s Nikhil Pahwa points out that a committee made up of technical experts may not help since “Pegasus can cover its tracks easily by deleting itself. The forensics required here need tremendous expertise.” What we really need: “auditing of govt expenditure. Follow the money. If Pegasus was bought, investigate the money trail.” But that kind of investigation requires government cooperation which is highly unlikely.
The bottomline: It remains to be seen whether the Supreme Court is really serious about taking on the government over our constitutional right to privacy. But this is a really good start.
The Telegraph offers a good overview, while Indian Express has the details of the members of the committee. MediaNama’s Nikhil Pahwa does a good job of laying out why Pegasus matters in this video. But our previous explainers offer the best context and background. We did a deep dive into NSO—which makes Pegasus—and its history of dubious dealmaking. We offered the general details of the media investigation—and explained how Pegasus works. And we looked at what the investigation revealed about snooping in India. And the reading lists of each of these explainers offers a rabbit hole on each angle that you can explore further.
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