Pushback on Pegasus

Pushback on Pegasus

News Analysis   /   Pushback on Pegasus

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Published on: October 28, 2021

Concerns about the Fundamental Rights

Source: The Indian Express 


The author discusses the importance of the Pegasus investigation group established by the Supreme Court.

Editorial Insights:

What’s the matter?

The Supreme Court has ordered a thorough investigation into allegations of improper spying using the Pegasus malware, demonstrating that the government cannot receive a free pass every time the threat of national security is mentioned.

The Committee:

The investigation will be led by a three-member technical committee appointed by the court, and it will be overseen by Justice R V Raveendran, who will be assisted by two other specialists.

The committee has been instructed to complete the investigation and provide a report as soon as possible.

In eight weeks, the committee is slated to submit its report.

Need for the Committee:

  • When rulings trying to enforce fundamental rights are founded on disputed facts, the court frequently appoints a committee to determine the validity of the facts.
  • At the same time, the government has not only rejected a global media probe into Pegasus's use, but has also refused to provide any facts in the case.
  • Furthermore, the case raises technical issues and necessitates substantial fact-gathering in order for the court to establish whether fundamental rights were infringed and to issue appropriate orders.
  • Furthermore, the Centre's failure to provide an additional affidavit implies the court will need the committee's help more.

Terms of Reference: To Enquire, Investigate, Determine

The court has set 7 terms of reference for the committee that are essential facts that need to be ascertained to decide the issue.


Question :

  • Is Pegasus being used on Indian residents' phones or other devices to access stored data, listen in on conversations, intercept data, and/or for any other purpose?
  • Details about the victims and/or those who were harmed as a result of the attack.
  • What steps/actions has the Union of India done in the aftermath of the Pegasus hacking of Indian Whatsapp accounts in 2019?
  • Is it true that Pegasus was purchased by the University of Iowa, a state government, or a federal or state agency for use against Indian citizens?
  • What legislation, rule, guideline, protocol, or lawful method has any government agency utilised Pegasus on Indian individuals, and under what law, rule, guideline, protocol, or lawful procedure?
  • Is it legal for any domestic company or person to deploy spyware on Indian citizens?

Any other subject or element related to, ancillary to, or incidental to the above that the committee deems appropriate to study.

At the same time, the court directed the committee to submit recommendations on a legal and policy framework for cyber security to preserve citizens' right to privacy.

To make Recommendations:

  • Concerning the enactment or revision of surveillance laws and processes, as well as ensuring a better right to privacy.
  • In terms of boosting and improving a nation's and its assets' cyber security.
  • To ensure that State and/or non-state entities utilising such spyware do not infringe on people's right to privacy in ways that aren't legal.
  • Concerning the installation of a tool to track suspicions of illegal device surveillance.
  • Concerning the establishment of a well-equipped independent prime agency to examine cyber security vulnerabilities and cyber-attacks, as well as assess cyber-threats.
  • In the event that an ad hoc solution is needed to protect citizens' rights until Parliament can address the gaps,
  • The committee may rule on any ancillary matter it deems fit and proper.


Significance of the committee & Judgment:

The decision comes at a time when the CJI has stated in the context of institutional independence that while there is much discussion about executive pressure, it is also critical to begin a discourse about how social media trends can affect institutions.

In this backdrop the order of the court constituting the committee attains significance for three clear reasons:

  1. The court's continued insistence on the Union Government's transparency and disclosure.
  2. When the Union government filled out a limited affidavit in court.
  3. The Supreme Court stated that these are insufficient and granted additional time.
  • A legal ruse of this nature can obstruct a fair judicial determination.
  • According to the courts, this is not a valid reason to refuse production of orders before the Court.
  • This trend is unworthy of the seriousness of constitutional adjudication, and the court believes that such an omnibus oral allegation is insufficient.
  • As a result, the court correctly assessed the need for disclosures on Pegasus by the Union government beyond blatant denials and ad hominem attacks.
  • The Supreme Court's firm stance on the Union Government's national security submissions.
  • The court stated that national security cannot be a bugbear that the judiciary avoids mentioning, and that the State's invocation of national security does not render the Court a mute spectator.
  • The observation/judgment will boost trust in constitutional adjudications, especially when courts demand evidence on national security arguments to avoid generalised statements made to avoid accountability.
  • Furthermore, the judgement rejected the government's proposal to form a government committee of experts.

The court strikes a delicate balance by appointing an impartial committee to investigate the public relevance as well as the alleged scope and type of the country's residents' fundamental rights violations.


Concluding Remarks:

The formation of this committee is a significant step toward holding Pegasus accountable to the victims and the general public. Simultaneously, it's critical to gauge public reaction. As a result, the committee's formation offers hope. Just as public trust cannot be shattered by a single act, restoring it will take time.

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