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