Pronouncement of Interim Order

October 27th 2021

A bench comprising Ramana CJI, Surya Kant J and Hima Kohli J pronounced an interim judgment today. The order was reserved on September 13th, for ‘2 or 3 days’. However, the case has been listed for judgment today after 44 days.

The petitioners in the case allege that mobile phones had been intercepted using Pegasus spyware. The developers of Pegasus claim that they only sell their programme to governments. The petitioners seek a judicial investigation to determine if the Union used Pegasus spyware to intercept their private communication.

In an ex-parte remark, Ramana CJI had indicated that the Bench was considering setting up a technical committee to investigate the allegations.

Judge-led Committee to Investigate Allegations

Ramana CJI provided a summary of the judgment. He began by noting that while PILs based on newspaper reports were not encouraged, some of the petitioners before the Court were direct victims of this surveillance. Stating that the allegations revealed an Orwellian concern, Ramana CJI said that the rule of law must be upheld.

The Court noted that the Union had refused to respond to specific allegations, and only filed  a ‘limited affidavit’. This increased the burden on the Court.

Ramana CJI discussed how surveillance has a chilling effect on how one exercises rights, resulting in self-censorship and affecting the freedom of press.

Ramana CJI then discussed the right to privacy. There may be limitations to this right, especially for intelligence agencies in instances of national security where the Court must be circumspect. But this does not bar judicial review. The limitations must pass constitutional scrutiny. The use of technology must be based on evidence and comply with the procedure established by law. This was especially important when private foreign companies were involved and foreign governments had taken the issue seriously.

So, the Court accepted the prima facie case of the petitioners and ordered the setting up of a technical committee. The Court noted that they looked for competent experts free from prejudice. Ramana CJI stated that they have not relied on any government agency when setting up the committee.

The committee will be overseen by Justice (Ret’d) R.V. Raveendran, former SC judge.

He will be assisted by:

• Mr. Alok Joshi, IPS officer, former head of the Indian Army’s Research & Analysis Wing.
• Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC 1/SC7 (International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee).

The committee will consist of three technical experts:

• Dr. Naveen Kumar Chaudhary, Dean of the School of Cyber Security and Forensics at National Forensic Sciences University, Gandhinagar.
• Dr. Prabhaharan P, Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala.
• Dr. Ashwin Anil Gumaste, Associate Professor of Computer Science & Engineering at IIT Bombay.

The terms of reference will be specified in the order. Read the judgment here.

 

The matter will be taken up next in 8 weeks. The committee is expected to file a report by then.