SFLC.IN APPROACHES THE SUPREME COURT ON THE PEGASUS ISSUE
SFLC.in has approached the Hon'ble Supreme Court by way of filing a Writ Petition/Public Interest Litigation bearing No. 909 of 2021 under Article 32 of the Constitution of India, seeking issuance of directions to the Respondents to ensure the protection of fundamental rights of the citizens of India, in the backdrop of the Pegasus controversy.
In a series of startling revelations by The Wire in India, the Pegasus spyware was found to have been used to target hundreds of cell phone devices in India. A copy of SFLC.in's detailed explainer on the Pegasus issue can be found here. In the backdrop of evidence suggesting the use of the Pegasus spyware on Indian citizens and the lack of judicial oversight or other safeguards against such invasive surveillance methods, the Petitioners were compelled to approach the Hon'ble Supreme Court under Article 32 of the Constitution of India.
The Petitioners in this Case
The Petition has been filed by Mr. Degree Prasad Chauhan and SFLC.in. Petitioner No. 1 Degree Prasad Chauhan is a human rights defender, a journalist, a lawyer and an activist. Mr. Chauhan's mobile device was presumably infiltrated by the Pegasus spyware and even though he is personally aggrieved, he has approached the Hon'ble Supreme Court in public interest and has not sought any relief for himself. SFLC.in is Petitioner No. 2 in this case. SFLC.in has done considerable work on surveillance over the years, including but not limited to publication of a comprehensive report on Surveillance titled "India's Surveillance State" which deals with the rights and laws revolving around communication surveillance in India. SFLC.in has also filed a number of RTIs, leading to disclosure of crucial information that affects public interest. In 2019, we had also sent our submissions titled "The Surveillance Industry and Human Rights" to the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, when the Special Rapporteur had invited comments on the surveillance industry and human rights.
The Writ Petition / PIL
The Writ Petition / PIL relies mentions the best practices in surveillance which are highlighted in various committee and law commission reports from other around the world, United Nations documents, reports by the UN Special Rapporteurs and other international law instruments. It further gives a detailed factual narration of events which have had an impact upon the issue of surveillance in India. Some of the grounds which the Petition relies upon include: Violation of the right to freedom of speech and expression, violation of the right to trade and profession, violation of international law obligations, disregard for the rule of law and the democratic processes by the Indian government, violation of the right to privacy, the lack of judicial oversight in the current legal framework governing surveillance in India and the inadequacy of the current surveillance framework. The Petition prays for the following reliefs: (i) direction to the Central Government and all the State Governments to not have any dealings with NSO and to discontinue its dealings with NSO; (ii) direction to the respondents prohibiting outsourcing/sub-contracting any surveillance activity to the private sector and directing a discontinuation of such dealings; (iii) direction to the Respondents to establish a judicial oversight mechanism for issuance of surveillance orders; (iv) Issuance of guidelines on certain aspects such as judicial oversight, compliance with the principles of necessity and proportionality; (v) Order a court monitored probe/investigation into the issue of surveillance by the Pegasus spyware in India; (vi) disclosure of certain details by the Government of India on the Pegasus controversy; (vii) declaration that Rule 419A of the Telegraph Rules is unconstitutional; (viii) declaration that Section 69 of the IT Act, 2000 is unconstitutional; (ix) declaration that the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 20009 are unconstitutional.
Updates from Court Hearings
Senior Advocate Colin Gonsalves appeared in the matter on Tuesday (17.08.2021) and mentioned the matter before the Hon'ble Bench. The PIL was tagged with the batch of Petitions which have been filed on the Pegasus controversy. A copy of the Order dated 17.08.2021 can be found below. We will be uploading a copy of the Writ Petition shortly.
The Solicitor General submitted that there was some difficulty in relation to the filing of the affidavit by the government, and in light of that, he requested for more time to be granted to the government. The case was adjourned by the Hon'ble Bench.
Senior Advocate Colin Gonsalves appeared before the Hon'ble bench comprising of Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli. He was appearing on behalf of Petitioner No. 1 (Degree Prasad Chouhan) and Petitioner No. 2 (SFLC.in). Relying on the material which was placed on record by the Petitioners, he argued that the Central Government and the States are indulging in widespread interception. He further submitted that if that is the case, we cannot rely on the principal wrongdoer to form a committee and do an investigation.
He also quoted a statement from the former Home Secretary G.K. Pillai, who had said that he was aware that Israeli tech firm NSO had been operating in India and that it had sold spying software in India.
He further submitted that the Petitioners have placed on record various reports which indicate how other countries have dealt with this issue.
The Hon'ble bench said that it will pass an interim order within 2-3 days. It also gave liberty to the Solicitor General to mention the matter in the meanwhile, if there was any reconsideration on the government's part.
Mr. Gonsalves was assisted by lawyers from HRLN and SFLC.in. Along with Mr. Gonsalves, Mishi Choudhary, Prasanth Sugathan, Kushagra Sinha and Siddharth Seem appeared before the Hon'ble Court, on behalf of the Petitioners.
The Hon'ble Chief Justice of India stated that the Supreme Court would be setting up a technical committee to look into the allegations surrounding the use of the Pegasus spyware. The CJI said this to Senior Advocate Chander Uday Singh (who is representing one of the Petitioners in the Pegasus matter before the SC), while Mr. Singh was making a mention in another matter.
The CJI further told him that the Orders were deferred because some of the members who were being considered by the Hon'ble Court for the technical committee, had expressed personal difficulties in being a part of the said committee.
The CJI also said that the Court will pass orders next week.
The Hon'ble Court passed a detailed Order, giving directions for the constitution of a Technical Committee comprising of independent experts, to look into the allegations relating to the use of the Pegasus spyware. The Technical Committee is to be headed by Justice RV Raveendran (Former judge of the Supreme court) and the three members (i) Dr. Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; (ii) Dr. Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and (iii) Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra, who have also received a substantial amount of recognition for their work.
The Committee has been given the mandate to make recommendations regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy. Furthermore, the Committee can also make recommendations to ensure the prevention of invasion of the right to privacy of citizens, otherwise than in accordance with law, by State and/or non-State entities through such spywares; and for the establishment of a much needed mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices. A detailed explainer of the blog may be found here.
The learned Overseeing (Retd.) Judge had submitted an Interim Report in February, 2022 before the Hon'ble Bench. The matter was then listed for hearing on 20.05.2022. The interim report of the Technical Committee stated that they have received 29 devices and notice has been issued to all the persons who submitted their devices. The Technical Committee in it's report also has mentioned that they have developed a software of their own to investigate and examine the devices submitted to them. The Hon'ble Court directed the Technical Committee to expedite examination of the Mobiles/Devices received by it, preferably within a period of four weeks and submit a report to the learned Overseeing Judge. The matter is now adjourned to be listed in the end of July, 2022.
The Technical Committee and the Overseeing Judge submitted their Reports to the Court. They have submitted that out of 29 phones, 5 were infected with malware but the presence of Pegasus spyware is inconclusive. The Report of the Overseeing Committee will be made public and the Report of the Technical Committee will be made public on a redacted form.
The following documents are attached below:
- Copy of the Writ Petition
- Copy of the Order dated 17.08.2021
- Copy of the Order dated 13.09.2021
- Copy of the Order (Judgment) dated 27.10.2021
- Copy of the Order (ROP) dated 27.10.2021
- Copy of the Order dated 20.05.2022
- Copy of the Order dated 25.08.2022