A bench of three judges of the Supreme Court of India composed of justices NVRamana, Surya Kant and Hima Kohli ordered the constitution of a committee of independent experts to examine the allegations of widespread and targeted surveillance of politicians, journalists, activists , etc. using the Pegasus software. The functioning of the committee will be overseen by the retired Supreme Court judge, Judge RV Raveendran and the technical committee will be composed of three members. The court asked the committee to quickly investigate the case.
In light of the important observations made by the Court in its order regarding the need for freedom of the press and the potential “chilling effect” of mass surveillance, LiveLaw spoke to N. Ram, one of the The country’s most respected senior journalists and the former Editor-in-Chief of ‘The Hindu’, who reported brilliant investigative journalism articles on issues like Bofors and Rafale.
At first, N. Ram, as one of the applicants in the case, expressed satisfaction with the interim order. “I think the statement of issues, the position statement, and the detailed mandate all indicate that this is an important order … they’ve delved into these issues even though it’s just about emergency orders. As a petitioner, I am very happy and look forward to it “, he says. That an independent committee headed by a retired Supreme Court judge be set up to investigate the allegations sounds like a “justification” for the petitioners’ demands, he adds.
Such a crippling effect on free speech is an attack on the press’s vital watchdog role: Supreme Court
The Court, in its order, observed that the question of possible surveillance is worrying not only from the point of view of the private life of individuals but also from the point of view of freedom of the press. Order Notes- “Such a chilling effect on free speech is an attack on the press public’s vital watchdog role, which can undermine the press’s ability to provide accurate and reliable information.”
N. Ram notes that these observations of the court on press freedom are very important as freedom of expression has been the subject of enormous pressure and attacks in different parts of the country from the central government and from the some state governments. “The eloquent sentences of this decree on freedom of the press, the need to protect it, and also some thoughts on the” chilling effect “particularly pleased me”, he adds.
The court, in its order, also makes a key observation regarding the need to protect journalistic sources and the potential chilling effect that such an illegal effect can have. He notes- ” the protection of journalistic sources is one of the fundamental conditions for press freedom. Without such protection, sources may be dissuaded from helping the press inform the public on matters of public interest. ”
Speaking from personal experience, N. Ram believes that in practice there is not much interference. “I’m not familiar with the situation in different parts of the country, in regards to our investigation in Bofors and later in Rafale, there was no real pressure to reveal or divulge sources other than maybe attempts like Pegasus for stealing this information illegally “, he explains. However, he adds, “I think the protection of journalistic sources, whether adequately protected by law, is still questionable. Legal experts like Gautam Bhatia have raised this question. Nevertheless, in the law of the land, I think it is going to be very important because there is a gap in the law. ”
Article 19 (1) (a) of the Constitution does not contain any express guarantee on the “protection of sources” for journalists. Ram mentioned that lawyer Gautam Bhatia in a room on “Freedom of Expression and Source Protection for Journalists” argued that the issue of source protection laws for journalists has largely not been addressed in Indian constitutional and statutory law. In the article written for the Center for Internet and Society, he argued that although the United States and Europe have recognized the importance of source protection, Indian case law on the matter is negligible despite the fact that the Law Commission has twice proposed some sort of shield law. for the protection of journalistic sources. Bhatia had argued that in order to protect the role of the press as a strong protective law, or that a final ruling by the Supreme Court, is needed to fill the current void.
As N Ram points out, the protection of journalistic sources is becoming particularly important in investigative journalism, as journalists will only be able to act as watchdogs if they can guarantee the confidentiality of their sources. In expressing his joy that the Supreme Court has drawn attention to the issue of journalistic sources, N Ram echoes the sentiment of others who hope that in the future the Court will use this opportunity to fill the legal void. that exists in the question.
Another important aspect of the Pegasus Order was the Court’s observation that, although newspaper articles, in and of themselves, should not normally be viewed as ready-made pleadings that could be read. filed with the Court, it takes note of the fact that “the considerable volume of cross-checked and verified reports from various reputable news organizations around the world as well as the reactions of foreign governments and legal institutions have also led us to consider that this is a case where the competence of the Court can be exercised. ” The Court’s submissions came in response to the Solicitor General’s argument that many newspaper articles are of a “reasoned” and “selfish” nature and would not be sufficient to justify invoking the jurisdiction of the Court.
Winner for Investigative Journalism: N Ram
With that in mind, N. Ram points out that there are several Supreme Court rulings that have said you can’t just dismiss them as newspaper accounts. “Of course, if these are only newspaper reports then that is debatable … but on this subject a lot of research has been done independently of the newspaper articles “, he adds. He recalls the work done by independent organizations abroad on this issue – Citizen Lab of the University of Toronto and Amnesty International. “The Lab is probably the leading group of experts on military grade spyware such as Pegasus. In addition, software developed by Amnesty International to detect whether Pegasus has compromised phones has been verified by Citizen Lab.” he points out. In his view, the government cannot dismiss these newspaper articles, and the court rightly balanced the value of media articles with the need for independent investigation.
In that sense, the court order can be seen as a victory for investigative journalism, he said.
On the question of newspaper articles constituting the basis of the investigations supervised by the Supreme Court, Apar Gupta, executive director of the Internet Freedom Foundation, points out that this would not be the Apex Court’s first instance to order an investigation into illegal surveillance issues based on investigative reports. As he rightly points out, the first major case of illegal surveillance before the Supreme Court arose from a news magazine “Mainstream” which published in 1991 a report on the unauthorized interception of more than 300 telephones by the government. The proceedings culminated in the 1996 Supreme Court ruling in People’s Union for Civil Liberties against Union of India, establishing clear and strict guidelines to combat unauthorized surveillance. After establishing a 9-point directive, the Apex Court declared that authorization to intercept phones can only be issued by secretaries of state for the Union and state governments. These guidelines were later codified into the Telegraph Rules in 2007, which include a specific rule that orders for interception of communications must be issued by the secretary of the Home Office. Thus, there are legal avenues of oversight under which the government, in certain circumstances, is authorized to exercise oversight. The legal question for the Committee and the Court to determine is whether the use of Pegasus falls within the circumstances defined by the Telegraph Act of India of 1885 and the Computer Act of 2000. As Apar Gupta points out, the legal question which Whether the installation of spyware in phones is permitted under the law since hacking is expressly prohibited under the Computer Act will rest for the court’s consideration.
There is an opportunity to independently investigate and investigate the matter and bring out the truth: N Ram
While the committee’s mandate is very broad in nature, giving the committee the space to formulate conclusions and recommendations as it sees fit, a common refrain that was voiced is that much of the committee’s success would depend on the degree of government cooperation. “The concern is whether the government will cooperate with the committee”, as Justice Dipak Gupta said when discussing the implication of the Supreme Court’s Pegasus Order.
N. Ram, however, is slightly optimistic. He adds, “For the sake of argument, even if the government does not cooperate, which it must of course do, you can independently investigate and investigate the matter and bring out the truth. For example, the software developed by Amnesty International. The tool was able to detect for example in the case of Prashant Kishore … so there is this possibility of investigation and independent investigation. But we hope that the government will cooperate and that the court will guarantee it. it will flout the court order if there is an obstruction that is illegal. “
He points out that there have been instances where companies have conducted independent investigations into the use of military-grade Pegasus spyware. He is referring to reports that surfaced in 2019 that Whatsapp users had been compromised by Pegasus spyware. “It was widely reported in 2019 that by exploiting a vulnerability in his Whatsapp system, Pegasus was able to target a large number of individuals… Whatsapp in collaboration with Citizen Lab sent messages to individuals he believed to have been compromised . This was recorded, the Supreme Court took note of it in its order “, he adds. All of this, he believes, shows that there is a possibility of independent investigation and investigation in case the government does not cooperate. He also points out that the court has some nuanced judicial oversight in this case and the power to do whatever is necessary to ensure that the government is cooperating. “But we hope the government will cooperate and the court will ensure that” he adds.
While the order has been colorfully described as “bringing sunshine in the dark days” and “historic” by lawyers, constitutional law experts and free speech advocates who hope the order will put end to practice of general arguments put forward on grounds of “national security” to escape responsibility, N. Ram, a petitioner in the case has a fairly simple hope.