Pegasus Panel: Need and Mandate

In News

• The Supreme Court has set up a panel to investigate allegations of potential surveillance of mobile phones using the Pegasus spyware.
  • Under the case, the Union Government is alleged to have used spyware for surveillance on private citizens.

What is Pegasus Software?

• Pegasus was developed by the Israeli firm NSO Group that was set up in 2010.
• Pegasus infect phones through what is called spear-phishing. 
  • Spear phishing is a fraudulent practise of sending emails ostensibly from a known or trusted sender 
    • In order to induce targeted individuals to reveal confidential information.
• Pegasus attack capabilities have become more advanced and can be achieved through so-called “Zero-click” attacks, 
  • Which do not require any interaction from the phone’s owner in order to succeed.
• These will often exploit “Zero-day” vulnerabilities, 
  • Which are flaws or bugs in an operating system that the mobile phone’s manufacturer does not know and so has not been fixed.

• The three-judge bench, in ordering a probe into Pegasus, flagged that its intervention is to 
  • “Uphold the constitutional aspirations and Rule of law” without being “Consumed in the political rhetoric.”

Why was the committee needed?

• Government’s inaction:
  • The government’s inaction to file a detailed response to the allegations made by the petitioners.
• Upholding Fundamental Rights:

• Decisions in cases seeking enforcement of fundamental rights are based on facts. 
• The task of determining these facts, when they are disputed or unknown, are often assigned to committees. 
  • which act as an agent of the court.
• Such committees or fact-finding teams can summon individuals, prepare ground reports, and inform the court.

• Preventing Media led Investigations:

• The government has rejected the global media investigation into the use of Pegasus but has not supplied any facts in the matter. 

• Technical Expertise:
  • The case involves technical questions and requires extensive fact-finding for the court to pass suitable orders. 
  • The Centre’s refusal to file an additional affidavit means the court will require more assistance from the committee.

Terms of Recommendation

• The court has set seven terms of reference for the committee, which are essential facts that need to be ascertained to decide the issue.
• These range from determining who procured Pegasus and whether the petitioners in the case were indeed targeted by the use of the software.
  • To what laws justify the use of such spyware against citizens.
• The court has also asked the committee to make recommendations on 
  • A legal and policy framework on cyber security to ensure the right to privacy of citizens is protected.
• Raveendran panel would now seek the government’s response afresh and probe into government excesses.
  • However, probe committees for government excesses like extra-judicial killings are often faced by a lack of cooperation from the government.
  • The Justice Raveendran panel has been empowered to take the assistance of any serving or retired officer(s), legal expert(s) or technical expert(s).
  • The committee is expected to submit its report in eight weeks.

Government’s response

• It’s a matter of national security so it would not file any further affidavit in the case.
  • But it would be willing to disclose all information before a committee of technical experts.
• The government had sought to appoint the technical committee itself.
• Which the court has not allowed, stating that such a course of action would violate the settled judicial principle against bias.
  • Justice must not only be done but also be seen to be done.

Issues Addressed by the Supreme Court

• Right to Privacy:
  • Privacy is not the singular concern of journalists or social activists.
  • The court reiterated that the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy.
• Freedom of the press:
  • Protection of journalistic sources is one of the basic conditions for the freedom of the press. 
  • Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.
• Right to Speech:
  • Such alleged surveillance on the freedom of speech is an assault on the vital public­ watchdog role of the press.
  • It may undermine the ability of the press to provide accurate and reliable information

• National Security v/s Citizen’s Rights:
  • Any violation of that right by the state, even in the national interest, has to follow procedures established by the law.
  • The order of SC is a strong rebuttal of the government’s specious and self-serving use of national security as a ground to criminalise the forms of dissent.
  • No omnibus prohibition on judicial review merely because of the spectre of national security.

Judicial Review

• Power of court to pronounce upon the constitutionality of legislative and executive acts of the government.
• Power of Judicial Review is vested in many Articles such as 13, 32,131-136,143, 226, 145, 246, 251, 254 and 372.

Way Ahead 

• In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed.
  • Except with sufficient statutory safeguards, by following the procedure established by law under the Constitution.

• Judicial Interventions
  • The order must be welcomed as the SC has a role as the custodian of individual rights enshrined in the Constitution.
  • Justice Raveendran panel must follow the court’s order in the letter and spirit.

• Legislative Interventions
  • The Right to Privacy was held as a part of fundamental rights by the Supreme Court in the KS Puttaswamy case, 2017.
  • There is a need for the enactment of the Personal Data Protection Bill 2019.

• Executive Interventions
  • The executive must refrain from taking steps that have arbitrary use of power.
  • Government must adhere to transparency and openness, which are celebrated values under our Constitution

Source: IE