Three experts on cyber security, digital forensics, networks and hardware were roped in by the Supreme Court on Wednesday to ”enquire, investigate and determine” whether Pegasus spyware was used for snooping on citizens and their probe would be monitored by former apex court judge R V Raveendran.
The three-member technical panel, which has been given wide-ranging powers, would comprise eminent experts Naveen Kumar Chaudhary, Prabaharan P and Ashwin Anil Gumaste, and report to Justice Raveendran.
Justice Raveendran would be assisted by former IPS officer Alok Joshi and Sundeep Oberoi -- chairman, Sub Committee in (International Organisation of Standardisation/ International Electro-Technical Commission/Joint Technical Committee) -- in monitoring the inquiry of the technical panel.
A bench headed by Chief Justice N V Ramana said that the expert panel will have the power to ”enquire, investigate and determine whether the Pegasus spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes and the details of the victims and/or persons affected by such a spyware attack”.
Chaudhary, the first member of the technical panel, is a professor (cyber security and digital forensics) and dean, National Forensic Sciences University, Gandhinagar, Gujarat. He has over two decades of experience as an academician, cyber security enabler and expert and specialises in cyber security policy, network vulnerability assessment and penetration testing, the apex court verdict said.
The second member of the technical committee is Prabaharan P, professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala and has ”two decades of experience in computer science and security areas”.
”His areas of interest are malware detection, critical infrastructural security, complex binary analysis, Artificial intelligence and machine learning. He has many publications in reputed journals," the bench said.
The third member of the technical committee, Gumaste is Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.
"He has been granted 20 US patents and has published over 150 papers and authored 3 books in his field. He has received several National awards including the Vikram Sarabhai Research Award (2012) and Shanti Swarup Bhatnagar Prize for Science and Technology (2018). He has also held the position of Visiting Scientist at the Massachusetts Institute of Technology, USA," the top court said.
Giving the details of the terms of reference, the verdict, penned by the CJI, said the panel would also enquire and investigate what steps/actions have been taken by the Centre after reports were published in 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware, whether any Pegasus suite was acquired by the Union of India, or any state government, or any central or state agency for use against the citizens of India.
"If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made? If any domestic entity/ person has used the spyware on the citizens of this country, then is such a use authorised? Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate," the bench asked the panel to enquire and investigate.
The top court also directed the expert panel to make recommendations regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy, enhancing and improving the cyber security of the nation and its assets.
The other recommendations which the expert panel has been asked to submit are to ensure prevention of invasion of citizens' right to privacy, otherwise than in accordance with law, by State and/or non-State entities through such spyware, regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
"Regarding the setting up of a well-equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyber attacks and to investigate instances of cyber attacks in the country. Regarding any ad hoc arrangement that may be made by this Court as an interim measure for the protection of citizen's rights, pending filling up of lacunae by Parliament,'' the verdict said.
The committee constituted is authorised to devise its own procedure to effectively implement and answer the terms of reference, hold such enquiry or investigation as it deems fit; and take statements of any person in connection with the enquiry and call for the records of any authority or individual, the top court said.
Justice Raveendran would be at liberty to take the assistance of any serving or retired officer(s), legal expert(s) or technical expert(s) in discharge of his functions, it said.
"We request the overseeing Judge to fix the honorarium of the members of the committee in consultation with them, which shall be paid by the respondent -- Union of India immediately.
"The Union of India and all the state governments, as well as agencies/authorities under them, are directed to extend full facilities, including providing support with respect to infrastructure needs, manpower, finances, or any other matter as may be required by the Committee or the overseeing former Judge to effectively and expeditiously carry out the task assigned to them by this court," the bench said.
The top court directed V K Bansal, officer on special duty/registrar, Supreme Court, to coordinate between the committee, the overseeing judge and the central/state governments to facilitate communication and ensure smooth functioning.
The committee is requested to prepare the report after a thorough inquiry and place it expeditiously before the court, it said.
Stating that "justice must not only be done, but also be seen to be done," the apex court rejected the Centre's plea to allow it to appoint an expert committee to investigate the allegations on the grounds that such a course of action would violate the settled judicial principle against bias.
The top court said it was inclined to pass an order appointing the expert committee whose functioning will be overseen by a retired Judge of the Supreme Court.
"Such a course of action has been adopted by this Court in various other circumstances when the court found it fit in the facts and circumstances of the case to probe the truth or falsity of certain allegations, taking into account the public importance and the alleged scope and nature of the large scale violation of the fundamental rights of the citizens of the country," the bench said.
The apex court said it is appointing the committee in view of the six compelling circumstances: Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined; entire citizenry is affected by such allegations due to the potential chilling effect; no clear stand taken by the Union of India regarding actions taken by it; seriousness accorded to the allegations by foreign countries; and involvement of foreign parties.
Further, the possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance; allegations that the Union or state governments are party to the rights' deprivations of the citizens, and limitation under writ jurisdiction to delve into factual aspects.
The apex court was hearing a batch of pleas seeking independent probe into the alleged Pegasus snooping matter.
The pleas seeking independent probe are related to reports of alleged snooping by government agencies on eminent citizens, politicians and scribes by using Israeli firm NSO's spyware Pegasus.