Allegations that Israeli-made Pegasus software was used to snoop on journalists, activists and politicians in India are about the violation of fundamental rights and "could have a chilling effect", the Supreme Court said today, setting up an inquiry headed by a retired judge.
A "vague denial from the government is not sufficient", the Supreme Court said sharply, asserting that the government could not give any clarity despite being given "ample opportunity" to do so. There had been no specific denial by the Centre, it said.
The court also commented on the government's statements on lawful interception for national security purposes. The state cannot get a free pass every time national security is raised, the Supreme Court adding that "in the task of upholding of fundamental rights, the state cannot be an adversary".
Retired Supreme Court Justice RV Ravindran will head the inquiry and an IPS officer will assist him, along with officials from the National Forensic University. The committee has to "expeditiously probe" the charge and report to the court by the next hearing two months later.
The court declined the government's request to set up an expert panel, saying it would "violate the settled judicial principle against bias".
Chief Justice NV Ramana began the judgment with a quote from George Orwell's 1984 -"If you want to keep a secret, you must also hide it from yourself."
The order noted that various petitions in the case had been filed by direct victims. Justice should not only be done but should be seen to be done, said the Supreme Court.
"This court gave ample time to the Centre to disclose all information regarding the Pegasus attack since 2019. However only a limited affidavit was filed throwing no light. If the Centre made its stand clear the burden on us would have been less," said the Chief Justice.
"In today's world, restrictions on privacy is to prevent terrorism activity and can only be imposed when needed to protect national security. But the state cannot get a free pass every time by raising national security concerns. 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 against judicial review. Centre should have justified its stand here and not rendered the court a mute spectator. The court will not encroach upon national security but that does not make the court a mute spectator."
Multiple petitions have called for an investigation into allegations that Israeli Pegasus spyware- sold only to governments - was used to target opposition leaders, journalists and others.
Petitioners, including former union minister Yashwant Sinha, CPM MP John Brittas, Supreme Court advocate ML Sharma, the Editors' Guild of India and individual journalists, had asked the court to order the government to produce details of the alleged unauthorised surveillance using Pegasus.
The Supreme Court said the petitions raised a concern about how technology could be used and abused.
"Without allowing ourselves to be consumed into political rhetoric, we have never refrained from protecting people from their fundamental rights being abused," said the judges.
The right to privacy, they said, needs to be discussed. Agencies used surveillance to fight terror and there could be a need to intrude upon privacy, but the court had a rider.
"Privacy is not just for journalists and politicians but also about the rights of individuals. There are restrictions on the right to privacy but those restrictions have to stand constitutional scrutiny," said the judgment.
The petitions also raised important concerns for the freedom of press, which is important pillar of democracy, and the protection of sources of journalists, the court said.
"It is undeniable that under surveillance it affects the right and the freedom of people and how it is exercised. It is also about the freedom of press and the important role played by them - such technology may have chilling effect on right to press."
The judges said it was an "uphill task" to choose independent members, and it was done based on data gathered "personally".
Disclaimer: The NSO group, which owns Pegasus, admits this is spyware and is used to hack phones, but says it does business only with governments and government agencies. The Israeli company says it does not corroborate the list of potential targets reported by media companies around the world. The Indian government has said there is "no substance" to the reports of Pegasus being used by it against opposition leaders, journalists and others. NDTV cannot independently verify the authenticity of the list of those who were supposedly targeted.
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