According to Greek mythology, Zeus honoured Pegasus for his years of faithful service by transforming him into one of the 88 constellations recognised today. Our own Pegasus was discovered in 2016, after a failed hacking attempt. The resultant investigation, revealed disturbing details, prompting a joint investigation conducted by 17 media organisations in July 2021. This confirmed that Pegasus spyware was used to target and spy on heads of state, activists, journalists, and dissidents, enabling “human rights violations around the world on a massive scale”. Forty-five countries were believed to be victims of the spyware. The then Minister of Law, Electronics and Information Technology whilst admitting the existence of this spyware, in a statement in the Parliament on November 20, 2019, took no follow-up action.
A series of petitions were filed before the SC seeking redressal on the question of fundamental rights and the right to privacy. These were heard together in 2021; with the SC treading gingerly, not to upset the Executive too much. For example, it took the court four hearings to issue a pre-admission notice to the government. Even so, the SC commented on the lack of cooperation by the government. No clear stand was taken by the Respondent Union of India represented by the Solicitor General, who filed a limited 3-page affidavit. The court commented “you do not want to take a stand” and “we cannot compel you to do something you do not want to”. During the hearings, the excuse of a security risk was given, and an offer made by the government, to appoint a committee to look into the matter. On October 27, 2021, the SC finally passed an order, disposing off the bunch of 12 petitions. The court rejected the offer of the government to appoint a committee, basically saying that justice should be seen to be done; thereby casting doubts on the government’s transparency.
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It observed that “the state cannot get a free pass every time the spectre of national security is raised, and that national security cannot be the bugbear that the judiciary shies away from”. It appointed a committee led by Justice RV Raveendran, former Judge, of the SC, constituent members identified on the basis of their qualifications and expertise, and the terms of reference defined. Central and State governments were to render all cooperation to the committee. It is curious that the committee’s video recordings were only of victims and some experts. There were no depositions by any Central or State government officials.
After numerous delays, a report was submitted to the SC in a sealed cover in August 2022. After some initial confusion over the date for hearing, CJI Ramana listed the matter before his bench on August 25, one day before his retirement, to examine the reports. During the hearing, the CJ took the reports on record, unsealed them, read out some portions of the reports and adjourned the case. The findings of the committee were announced in summary without any details. Twenty-nine devices had been examined; the findings were not revealed except to say that of these, five were found to be infected with malware, which could not be identified as Pegasus spyware. The court put on record, the government’s lack of cooperation with the committee. It also stated that the committee had requested withholding public disclosure of the report as it may compromise security; and that the persons deposing had requested confidentiality. The CJ indicated that a redacted version of the report may be available when the court had reviewed its contents.
A three-paragraph order was released without any directives, and the report resealed and kept in the custody of the Secretary General of the SC. Justice Raveendran, the overseeing judge, had submitted another report recommending reviews of surveillance laws, data privacy and cyber security; this report was also kept sealed.
Various government officials and spokespersons whooped for joy. Ravi Shankar Prasad, the former IT minister, called it a motivated campaign against the PM by self-appointed intellectuals, NGOs and media. Hitesh Jain called it a contrived outrage without any basis. Others thundered that the committee’s failure to find any proof of the use of Pegasus cleared the government of any spying charges. The moot question is: how is anyone to rebut the findings of the committee when there has been no public disclosure of the contents?
Did the hundreds of cyber-security researchers and tech companies like Apple, Google, Meta, etc, get hoodwinked into spending millions of dollars in research and subsequently tightening up their security systems based on their findings? Did companies like Apple and Meta commit perjury before the US courts when they presented their findings regarding the Zero-Click facility of Pegasus? And were countries like France, Germany, Poland and Hungary being stupid when they admitted to purchasing Pegasus? The Respondent – GOI, if clean, could have submitted a simple affidavit stating that they had nothing to do with Pegasus. Instead, the findings of the committee lie in a sealed envelope in the court without any scientific or legal scrutiny and declared a State secret. These issues will forever remain a blot on the credibility of both the government and the SC.
Finally, Justice Ramana took over as CJI at a difficult time. By and large he is thought to have done justice to the post. However, his failure to list issues like abrogation of Article 370, Citizenship amendment Act, and Electoral Bonds do stand out. History will add to this list, the Pegasus issue.
(The writer is a founder member of VHAG)
