Context

The Supreme Court of India has appointed a committee presided by Justice (Retd.) R V Raveendran to inquire into the Pegasus revelations.

Terms of reference

• The court’s terms of reference include queries on, “What steps/actions have been taken by the Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts”, and, “Whether any Pegasus suite of spyware was acquired by the Union of India, or any State Government, or any central or state agency for use against the citizens of India”.
• The constitution of this committee marks an important step towards accountability for the victims and the larger public on the use of Pegasus.

Significance of the committee on Pegasus issue

1) Transparency and disclosure

• The order of the court constituting the committee attains significance for three clear reasons.
• The first is the court’s continuing insistence on transparency and disclosure by the Union government.
• The only filing made in court by the government was a limited affidavit, containing short paragraphs of generalised denials and the sole annexure of a statement by the Minister for Electronics and IT before Parliament.
• Immediately, the Supreme Court pointed out that these are inadequate and provided further time.

2) The SC’s approach towards national security

• The second reason is the Supreme Court’s firm approach towards the national security submissions by the Union government.
• The court correctly applied the settled convention on legal pleadings and affidavits by asking the government to, “necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns.”
• The second aspect of the national security argument is how the court balances it with the fundamental right to privacy.
• Here, drawing from the framework of the K S Puttaswamy judgment the court specifically states that, “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning” and, “mere invocation of national security by the State does not render the Court a mute spectator”.
• These are significant observations that, when followed as precedent, will bolster confidence in constitutional adjudications especially when courts demand evidence on arguments of “national security” to avoid generalised statements made to evade accountability.

3)  Rejection of the suggestion by the Solicitor-General to constitute a government committee of experts

• The court correctly notes that even though the Pegasus revelations were first made on November 1, 2019, there has been little movement on any official inquiry.
• It also records the genuine apprehension of the petitioners, many of whom are victims of Pegasus, that since the sale of this malware can only be made to governments, they fear the involvement of state agencies.

Challenges

• These include the functioning of the committee and the cooperation of government witnesses, the publication of the report so as to ensure public confidence and, ultimately, the directions and remedy provided by the Supreme Court.

Conclusion

Hence, the constitution of this committee provides hope. At the same time, any honest assessment should consider the more challenging tasks ahead.

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