The Supreme Court on Wednesday formed an independent expert committee, to be supervised by Justice R V Raveendran, a retired top court judge, to go into the "truth or falsity" of allegations of snooping on citizens by use of Israel's Pegasus spyware.
A three-judge bench presided over by Chief Justice of India N V Ramana said the court had no option but to accept prima facie allegations by a batch of petitioners, including journalist N Ram, for a probe, as the union government made an "omnibus and vague" denial in its limited and short affidavit in the matter.
The court passed its order taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country. It noted a broad consensus that unauthorised surveillance or accessing of stored data from the phones and other devices of citizens for reasons other than the nation’s security would be "illegal, objectionable and a matter of concern."
"Our effort is to uphold the constitutional aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric. This court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights," the bench, also comprising Justices Surya Kant and Hima Kohli, said.
As petitioners raised grave concern on violation of the right to privacy by use of spyware sold only to government agencies, the bench said, "Every invasion of privacy must pass the test of reasonableness and constitutional necessity."
The Centre, for its part, had refused to divulge details whether Pegasus was used or not, citing the national security concerns.
The bench said it is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. “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 virtue of its mere mentioning," the bench said in its 46-page judgement.
The court also pointed out some foreign governments have seriously taken the purported spyware attack, and some have initiated proceedings internally to determine the truth. It also rejected the Centre's proposal to form its panel, saying it would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done but also be seen to be done'.
The court constituted the technical committee comprising of three members, including those who are experts in cyber security, digital forensics, networks and hardware. The members are Dr Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) National Forensic Sciences University, Gandhinagar, Dr Prabaharan P, Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala and Dr Ashwin Anil Gumaste, Associate Professor (Computer Science and Engineering), IIT Bombay.
Their functioning will be overseen by Justice R V Raveendran, former judge, Supreme Court. He will be assisted by Alok Joshi, former IPS officer (1976 batch) and Dr Sundeep Oberoi, Chairman, Sub Committee in (International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee).
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