Supreme Court move to set up a panel to probe Pegasus is a vital and welcome step

A probe under an SC-appointed committee has more credibility than one by a government panel. At stake are vital issues involving civil liberties, including the right to privacy of citizens, the integrity of institutions and due process.

The Supreme Court said Thursday that it would set up a committee of experts to study the allegations of illegal surveillance using Pegasus spyware and issue orders next week. Expert panels appointed by the court always test the separation of powers but in this case, the move is vital and welcome. When the executive cites national security, a probe under an SC-appointed committee has more credibility than one by a government panel. At stake are vital issues involving civil liberties, including the right to privacy of citizens, the integrity of institutions and due process. The public is entitled to know, as the court said, “whether this spyware has been used by the government by any other method other than permissible under the law”.

Since the Pegasus Project, a collaborative journalism enterprise, reported by The Wire in India, revealed that a spyware developed by Israeli firm NSO Group is being surreptitiously used to snoop on politicians, journalists, civil liberties activists — three journalists of The Indian Express were on the list, two current, one former — the government has been cagey about clearing the air. Though the Minister of State for Defence told Parliament that his ministry “had not carried out any transaction with NSO Group Technologies” — the NSO has clarified that it trades only with sovereign governments — Solicitor General Tushar Mehta told the Supreme Court that the government cannot be made to answer whether or not it uses Pegasus spyware. Mehta reasoned that a clarification on this matter by the government would alert terrorists and compromise national security. While the government filed a short affidavit in the Supreme Court, when proceedings began on a clutch of petitions filed by journalists and the Editors Guild of India, it backtracked from filing a detailed affidavit that it had promised the court, earlier this month. However, the government offered to set up a panel of experts to look into the allegations and submit a report to the court. At every step, the government has cited national security to avoid a discussion on Pegasus — its refusal to allow a debate on the matter in Parliament resulted in the Opposition disrupting the Monsoon Session. The government’s defence of its intransigence — that terrorists would be alerted if it speaks — is weak since no one has asked for the names of terrorists under surveillance. What is being asked is whether state agencies used the spyware to snoop on journalists, Opposition politicians, human rights activists, bureaucrats etc., and if so under whose authorisation. If it has not, it is as much a task of the government to probe if any outside agency has used the spyware on Indian citizens since the petitioners have claimed that forensic analysis revealed tampering of their gadgets.

The Supreme Court has been the custodian of personal freedoms and has been an alert watchdog whenever the executive and legislature have transgressed the red lines that separate the state’s authority from the domain of individual rights, including the right to privacy. India’s stance on Pegasus has been in sharp contrast to other governments, which have taken serious note of the revelations and set up probes. The court has rightly recognised that the likes of Pegasus pose a threat to core values of democracy as well as the autonomy and credibility of institutions and processes. Its panel and its work are keenly awaited.

This editorial first appeared in the print edition on September 24, 2021 under the title ‘Court is watching’.

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