The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “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.”

Here is all you need to know about the case and the order of the Court


The Controversy


The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.


Why?


The compelling circumstances that have weighed with to appointed an Expert Committee:

  1. Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined.
  2. The entire citizenry is affected by such allegations due to the potential chilling effect.
  3. No clear stand taken by the Respondent¬Union of India regarding actions taken by it.
  4. Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.
  5. Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.
  6. Allegations that the Union or State Governments are party to the rights’ deprivations of the citizens
  7.  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.

Who?


“… it was an extremely uphill task to find and select experts who are free from prejudices, are independent and competent.”

Rather than relying upon any Government agencies or any, the Court constituted the Committee and shortlisted expert members based on biodatas and information collected independently. While the Court shortlisted and chose the most renowned experts available to be a part of the Committee, it also left it to the discretion of the learned overseeing judge to take assistance from any expert, if necessary, to ensure absolute transparency and efficiency.

Head: Justice R.V. Raveendran, former Judge, Supreme Court of India, assisted by:

  1. Mr. Alok Joshi, former IPS officer (1976 batch) with immense and diverse investigative experience and technical knowledge. He has worked as the Joint Director, Intelligence Bureau, the Secretary(R), Research and Analysis Wing and Chairman, National Technical Research Organisation.
  2. Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7 (International Organisation of   Standardisation/ International   Electro¬Technical   Commission/Joint Technical Committee), a sub¬committee which develops and facilitates standards within the field of software products and systems. He is also a part of the Advisory Board of Cyber Security Education and Research Centre at Indraprastha Institute of Information Technology, Delhi and is a globally recognized as a cyber security expert.

Three members of the Technical Committee:

  1. Dr. Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat. He has over two decades of experience as an academician, cyber security enabler and cyber security expert and specializes in cyber security policy, network vulnerability assessment and penetration testing.
  2. Dr. Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala. He has two decades of experience in computer science and security areas. His areas of interest are malware detection, critical infrastructural security, complex binary analysis, AI and machine learning.
  3. Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra. He has been granted 20 US patents and has published over 150 papers and authored 3 books in his field. He has received several National awards including the Vikram Sarabhai Research Award (2012) and Shanti Swarup Bhatnagar Prize for Science and Technology (2018). He has also held the position of Visiting Scientist at the Massachusetts Institute of Technology, USA.

What?


The terms of reference of the Committee are as follows:

To enquire, investigate and determine:

  1. Whether the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated herein?
  2. The details of the victims and/or persons affected by such a spyware attack.
  3. What   steps/actions   have   been   taken   by   the Respondent-Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware.
  4. Whether any Pegasus suite of spyware was acquired by the Respondent-Union of India, or any State Government, or any central or state agency for use against the citizens of India?
  5. If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made?
  6. If any domestic entity/person has used the spyware on the citizens of   this   country,   then   is   such a use authorised?
  7. Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate.

To make recommendations:

  1. Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.
  2. Regarding enhancing and improving the cyber security of the nation and its assets.
  3. To ensure prevention of invasion of citizens’ right to privacy, otherwise than in accordance with law, by State and/or non-State entities through such spywares.
  4. Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
  5. Regarding the setting up of a well¬equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country.
  6. Regarding any ad¬hoc arrangement that may be made by this Court as an interim measure for the protection of citizen’s rights, pending filling up of lacunae by the Parliament.
  7. On any other ancillary matter that the Committee may deem fit and proper.

How?


(1) The Committee constituted is authorised to ¬

(a) devise its own procedure to effectively implement and answer the Terms of Reference;

(b) hold such enquiry or investigation as it deems fit;and

(c) take statements of any person in connection with the enquiry and call for the records of any authority or individual.

(2)  Justice R. V. Raveendran, former Judge, Supreme Court of India will oversee the functioning of the Committee with respect to the methodology to be adopted, procedure to be followed, enquiry and investigation that is carried out and preparation of the report.

(3) The overseeing Judge is at liberty to take the assistance of any serving or retired officer(s), legal expert(s) or technical expert(s) in discharge of his functions.

(4) The overseeing Judge to fix the honorarium of the members of the Committee in consultation with   them, which shall be paid by the Respondent¬Union of India immediately.

(5) The Respondent¬Union of India and all the State Governments, as well as agencies/authorities under them, are directed to extend full facilities, including providing support with respect to infrastructure needs, manpower, finances, or any other matter as may be required  by the Committee or the overseeing former Judge to effectively and expeditiously carry out the task assigned to them by this Court.

(6) Mr. Virender Kumar Bansal, Officer on Special Duty/ Registrar, Supreme Court of India, to coordinate between the Committee, the learned overseeing Judge and the Central/State Governments to facilitate communication and ensure smooth functioning and expeditious response to, and implementation of,   requests made by the Committee, the learned overseeing Judge or other members, tasked to assist him.


The Committee has to prepare the report after a thorough inquiry and place it before the Supreme court, expeditiously.

The matter will next be taken up after 8 weeks.

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]

___________________________________________________________________________________________________________________

Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

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