On 27 October 2021, the Supreme Court of India ordered a three-member technical committee to conduct a thorough inquiry into allegations of unauthorised surveillance using the Pegasus (Spyware) software saying that the Government cannot get a free pass whenever the spectre of National Security is raised.
The three-members in the technical committee are:
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Dr Naveen Kumar Chaudhary (Dean of National Forensic Sciences University in Gandhinagar, Gujarat).
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Dr Prabaharan P (Professor at Amrita Vishwa Vidyapeetham in Kerala).
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Dr Ashwin Anil Gumaste (Institute Chair Associate Professor at Indian Institute of Technology, Bombay).
The apex court urged a retired judge, Justice R V Raveendran and the other two experts (former IPS Officer Alok Joshi and Cyber Security Expert Dr Sundeep Oberoi) to oversee the functioning and prepare the report after a thorough inquiry and place it before the Supreme Court.
The Supreme Court will again hear the matter after 8 weeks.
The ruling came on a batch of 12 petitions which sought an independent probe into the alleged illegal use of the Israeli NSO Group Spyware Pegasus.
The judgment pronounced by the Chief Justice of India, NV Ramana said that the Court was constituted to pass this order due to the following compelling circumstances:
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Right to privacy and freedom of speech are alleged to be impacted which needs to be examined.
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The entire citizenry is affected by such allegations due to the potential chilling effect.
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No clear stand was taken by the Respondent-Union of India regarding actions taken by it.
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Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.
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The possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.
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Allegations that the Union or State Governments are parties to the rights deprivations of the citizens.
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Limitation under writ jurisdiction to delve into factual aspects. For instance, even the question of usage of the technology on citizens which is the jurisdictional fact is disputed and requires further factual examination.
The bench comprising of Chief Justice of India (N V Ramana), Justices Surya Kant and Hima Kohli observed that the petitioners have placed on record certain material that prima facie merits consideration by the Court.
The Court also observed, "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 the judgment.
In addition, the Court observed, "In such circumstances, we have no option but to accept the prima facie case made out by the petitioners to examine the allegations made".
While acknowledging that the Union of India can decline information when issues of National Security are involved, the Court said that mere invocation of National Security can't render the Court a mute spectator.
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 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.
Since 2019, the Court has given ample time to disclose all information regarding the pegasus attack. However, only a limited affidavit was filed.
