The Evening Wrap: State has no power to snoop into ‘sacred private space’ of individuals, says SC

Stressing that the power of the state to snoop, in the name of national security, into the “sacred private space” of individuals could not be absolute, the Supreme Court on Wednesday appointed an expert technical committee overseen by a former Supreme Court judge, Justice R.V. Raveendran, to examine allegations that the Centre used Israeli software, Pegasus, to spy on citizens. A three-judge Bench led by Chief Justice of India N.V. Ramana explained that it decided to refuse the Centre’s offer to appoint an expert committee to investigate the allegations because “such a course of action would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done, but also be seen to be done’”. Justice Raveendran would be assisted by Alok Joshi, former IPS officer (1976 batch) and Sundeep Oberoi, Chairman, Sub Committee in (International Organisation of Standardisation/International Electro-Technical Commission/Joint Technical Committee). The three members of the technical committee are Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra. The court said it was “extremely difficult” to shortlist the members. Many had “politely declined” while others cited personal reasons. The Bench said it had formed the committee with the best intentions to ensure “absolute transparency and efficiency”. The court said it consciously avoided “political thickets” but could not cower when allegations involved a “grave” threat to the privacy and free speech of the entire citizenry and raised the possibility of involvement of the Government, or even a foreign power, behind the surveillance. The court said the petitions filed before it, including ones by veteran journalists N. Ram and Sashi Kumar, Editors Guild of India, and victims of alleged snooping, had raised “Orwellian concerns” about an all-pervasive technology like Pegasus. The court said India could not remain mute in the face of Pegasus allegations when other countries across the globe had taken them seriously. The court asked the committee to submit its report “expeditiously”. It posted the next hearing after eight weeks. It said the gnawing fear of being spied on affected liberty and had a “chilling effect”. Ordinary citizens, and not just activists and journalists, started to drift towards self-censorship. “Members of a civilised democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom. It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights,” the Bench, also comprising Justices Surya Kant and Hima Kohli, said in the order. The court highlighted how the Union of India had not specifically denied the allegations. The government, despite being given several opportunities by the court, chose to respond with an “omnibus and vague denial” in a “limited affidavit”. The Government had refused to take a clear stand in court, citing national security reasons, despite the fact that the Pegasus allegations had first surfaced two years ago. “The mere invocation of national security by the state does not render the court a mute spectator,” Chief Justice Ramana clarified for the Bench. The state did not get “a free pass every time the spectre of national security is raised… National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”. The court, however, declined a plea by the petitioners to have the Cabinet Secretary submit an affidavit in court, responding to Pegasus allegations. The court referred to William Pitt, the Earl of Chatham, on the power of the right to privacy of the citizen over the state. “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail — its roof may shake— the wind may blow through it— the storm may enter, the rain may enter— but the King of England cannot enter!— all his force dares not cross the threshold of the ruined tenement!” the Supreme Court quoted. Pegasus is one of the reasons why we see a ‘muted Opposition’: Rahul Gandhi Congress leader Rahul Gandhi on October 27 termed as a “big step” the Supreme Court appointing a three-member panel of cyber experts to probe the alleged use of Israeli spyware Pegasus for surveillance of certain people, and expressed confidence that truth would come out. Asserting that alleged snooping using Pegasus is an “attempt to crush Indian democracy”, Gandhi said it is a “big step that the Supreme Court has said that they are going to look into this matter. I am confident that we will get the truth out of this”. “Pegasus spyware was ordered either by Prime Minister or the Home Minister,” Gandhi said. “If the PM has done this, we would like to know why is the PM doing an illegal act,” he asked, adding that “Using of Pegasus is illegal in India. Prime Minister is not above the Law.” “We were asking three basic questions — who authorised Pegasus, which agency, which person authorised Pegasus as we all know Pegasus cannot be bought by a private individual, it has to be bought by a government; second question was who was it used against; final thing was, did any other country have access to information of our people,” the former Congress chief said. “If the data of Election Commission or Opposition leaders’ data is going to PM, it is a criminal act. If you are using it to tackle terrorism, then it is a different thing. But using data for PM’s personal use is a totally criminal thing,” Gandhi said. “Governments have been dropped, for example, in Karnataka, using Pegasus,” he noted. “The government was attacking national security. If the data of our Election Commission, Opposition leaders or Chief Ministers are held outside India, they are attacking national security,” Gandhi noted. Gandhi said it is not a political matter but an existential matter. “And this is one of the reasons why you see a muted Opposition,” he added. India criticises China for its new land border law India on October 27 hit out at China for its “unilateral” decision to bring about a new land border law and said it is a matter of concern as the legislation can have implications on the existing bilateral pacts on border management and on the overall boundary question. External Affairs Ministry Spokesperson Arindam Bagchi said India expects that China will avoid undertaking action under the pretext of the law that could unilaterally alter the situation in the India-China border areas. He said such a “unilateral move” will have no bearing on the arrangements that both sides have already reached earlier — be it on the boundary question or for maintaining peace and tranquillity along the Line of Actual Control (LAC). Last week, China’s national legislature adopted the new law on the protection and exploitation of the land border areas, which could have bearing on Beijing’s border dispute with India. “China’s unilateral decision to bring about a legislation which can have implication on our existing bilateral arrangements on border management as well as on the boundary question is of concern to us,” Bagchi said. “Such unilateral move will have no bearing on the arrangements that both sides have already reached earlier, whether it is on the boundary question or for maintaining peace and tranquillity along the LAC in India-China border areas,” he said. Xinhua news agency reported last week that the law, which becomes operational from January 1 next year, stipulates that “the sovereignty and territorial integrity of the People’s Republic of China are sacred and inviolable”. Supreme Court refuses bail to gangster Abu Salem in 1995 Pradeep Jain murder case The Supreme Court on Wednesday refused to grant bail to extradited gangster Abu Salem, who is serving life imprisonment in the 1995 murder case of Mumbai-based builder Pradeep Jain. A bench of Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli said, “This is an application filed on behalf of the applicant/appellant seeking bail during the pendency of the appeal. Having heard counsel for the parties and carefully perusing the averments made in the application, we are not inclined to grant bail to the applicant/appellant”. The bench, however, taking into consideration the facts and circumstances of the case, directed the Registry to list his appeals against the February 25, 2015 verdict of the special TADA court, for final disposal in the third week of November 2021. On February 25, 2015, the special TADA court had awarded Salem life imprisonment for murdering the builder, along with his driver Mehndi Hassan. Another accused in the case Virendra Jhamb’s sentence was set off against the period of detention undergone by him in prison during the various stages of investigation in the case. Aryan Khan bail hearing: Arguments to continue on October 28 The Bombay High Court will continue hearing the bail plea of Aryan Khan, the son of Bollywood actor Shah Rukh Khan who has been arrested in a drugs case, on Thursday when the NCB will present its arguments. Justice N.W. Sambre began hearing the bail application on Tuesday. On Wednesday, Aryan Khan’s counsel Mukul Rohatgi, co-accused Arbaaz Merchant’s lawyer Amit Desai and advocate Ali Kaashif Khan Deshmukh, who appeared for Munmun Dhamecha, completed their arguments. After the hearing which went on for over two hours, Justice Sambre said he would hear Additional Solicitor General Anil Singh, who is representing the Narcotics Control Bureau (NCB), on Thursday. “Tomorrow we will try to finish it,” the judge said. Aryan Khan (23), Merchant and Dhamecha were arrested along with others on October 3 following a raid by the NCB on a cruise ship off the Mumbai coast and alleged seizure of drugs. They approached the HC last week after a special court for NDPS Act cases rejected their bail pleas. Plenty of Congressmen are coming in, says Amarinder Singh on new party Claiming that several Congress members were in touch with him, former Punjab Chief Minister Amarinder Singh on Wednesday said he would launch his new party as soon as the Election Commission cleared the name and the symbol. “Our lawyers are working on it and they are in touch with the Election Commission. As soon as the Election Commission clears the name and symbol, I’ll share it. Many people from the Congress party are in touch with me and they will come out in the open when the time comes. I promise you one thing: that we will contest all 117 Assembly seats. Whether we fight in alliance or whether we fight on our own, time will tell,” he told reporters. “Plenty of Congressmen are coming in. We are waiting for the opportune moment. But I will not take their names. Already, my supporters are being harassed,” said Capt. Amarinder. Asked how many MLAs were in touch with him, he quipped: “If Rahul Gandhi needs to have back-to-back meetings with Punjab Congress MLAs, what does it mean?” He rejected the Congress’s claims that a majority of the MLAs opposed his continuation in office and said, “Once they [party leadership] made up their mind to replace me, all these excuses are being made.” Pointing out that the so-called 18-point agenda of the Congress for his government was nothing but part of the Punjab 2017 manifesto, he said the ‘Kharge committee’ was clearly told that 92% of all the poll promises had been fulfilled. Taking on his detractors, particularly State party president Navjot Sidhu and State Home Minister Sukhjinder Randhawa, Capt. Amarinder accused them of indulging in petty politics. “We will fight and defeat Sidhu from wherever he contests the upcoming Assembly polls,” he said, adding that since the former had taken over the Punjab Congress reins, there had been a 25% drop in the party’s popularity, as per his survey. Slamming the Punjab government over its repeated denial of any serious security concerns, Capt. Amarinder said there was something very wrong and dangerous happening at the borders, which the state could ill-afford to ignore. He refuted allegations that the Border Security Force (BSF) would take over the State’s administration or will be deployed in Golden Temple etc, and said such misconceptions were being spread by certain people to score brownie points in the run-up to the Assembly elections. “The BSF is here for helping maintain national security as we are a border state,” he said, calling for full support by the state to the Centre in the interest of national security. He added that he will soon lead a non-political delegation of agricultural experts to meet the Union Home Minister to discuss possible solutions to the ongoing farmers’ agitation. Trashing allegations against his Pakistani friend Aroosa Alam, Capt. Amarinder termed as baseless the charges of money being sent out by her. Asking if Aroosa was the only issue left in Punjab, he questioned the intention of Randhawa in raising the issue now after never raking it up all these years. Aroosa had been visiting him for 16 years and he would definitely invite her again, Capt. Amarinder added. Covid Watch: Numbers and Developments The number of reported coronavirus cases from India stood at 3,42,28,784 at the time of publishing this newsletter, with the death toll at 4,56,365. The Government of India has applied for loans from the Asian Development Bank (ADB) and the Asian Infrastructure Investment Bank (AIIB) to procure as many as 667 million doses of COVID-19 vaccines. The Manila-based ADB, in which the U.S. and Japan are the biggest shareholders, and the Beijing-based AIIB, where China and India are the biggest shareholders, are in the process of considering the loans. The ADB is expected to lend $1.5 billion and the AIIB around $500 million for the vaccine purchase by the Government of India, which has been made under the ADB’s Asia Pacific Vaccine Access Facility (APVAX) initiative. Launched in December 2020, APVAX offers “rapid and equitable support to its developing member countries as they procure and deliver effective and safe COVID-19 vaccines”. The 667 million doses will, however, have to be vaccines qualified by the World Health Organization (WHO). Covishield is among those vaccines, but Covaxin is still awaiting the green light with a final assessment scheduled for November 3. Evening Wrap will return tomorrow. [logo] The Evening Wrap 27 OCTOBER 2021 [The Hindu logo] Welcome to the Evening Wrap newsletter, your guide to the day’s biggest stories with concise analysis from The Hindu. [[Arrow]Open in browser]( [[Mail icon]More newsletters]( Pegasus case: No absolute power for state to snoop into ‘sacred private space’ of individuals, says Supreme Court Stressing that [the power of the state to snoop, in the name of national security, into the “sacred private space” of individuals could not be absolute]( the Supreme Court on Wednesday [appointed an expert technical committee]( overseen by a former Supreme Court judge, Justice R.V. Raveendran, to examine allegations that the Centre used Israeli software, [Pegasus]( to spy on citizens. A three-judge Bench led by Chief Justice of India N.V. Ramana [explained]( that it decided to refuse the Centre’s offer to appoint an expert committee to investigate the allegations because “such a course of action would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done, but also be seen to be done’”. Justice Raveendran would be assisted by Alok Joshi, former IPS officer (1976 batch) and Sundeep Oberoi, Chairman, Sub Committee in (International Organisation of Standardisation/International Electro-Technical Commission/Joint Technical Committee). The three members of the technical committee are Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra. [As per cyber experts, snooping is a commonly deployed tool in the corporate world.]  The court said it was “extremely difficult” to shortlist the members. Many had “politely declined” while others cited personal reasons. The Bench said it had formed the committee with the best intentions to ensure “absolute transparency and efficiency”. The court said it consciously avoided “political thickets” but could not cower when allegations involved a “grave” threat to the privacy and free speech of the entire citizenry and raised the possibility of involvement of the Government, or even a foreign power, behind the surveillance. The court said the petitions filed before it, including ones by veteran journalists N. Ram and Sashi Kumar, Editors Guild of India, and victims of alleged snooping, had raised “Orwellian concerns” about an all-pervasive technology like Pegasus. The court said India could not remain mute in the face of Pegasus allegations when other countries across the globe had taken them seriously. The court asked the committee to submit its report “expeditiously”. It posted the next hearing after eight weeks. It said the gnawing fear of being spied on affected liberty and had a “chilling effect”. Ordinary citizens, and not just activists and journalists, started to drift towards self-censorship. “Members of a civilised democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom. It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights,” the Bench, also comprising Justices Surya Kant and Hima Kohli, said in the order. The court highlighted how the Union of India had not specifically denied the allegations. The government, despite being given several opportunities by the court, chose to respond with an “omnibus and vague denial” in a “limited affidavit”. The Government had refused to take a clear stand in court, citing national security reasons, despite the fact that the Pegasus allegations had first surfaced two years ago. “The mere invocation of national security by the state does not render the court a mute spectator,” Chief Justice Ramana clarified for the Bench. The state did not get “a free pass every time the spectre of national security is raised… National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”. The court, however, declined a plea by the petitioners to have the Cabinet Secretary submit an affidavit in court, responding to Pegasus allegations. The court referred to William Pitt, the Earl of Chatham, on the power of the right to privacy of the citizen over the state. “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail — its roof may shake— the wind may blow through it— the storm may enter, the rain may enter— but the King of England cannot enter!— all his force dares not cross the threshold of the ruined tenement!” the Supreme Court quoted. [underlineimg] Pegasus is one of the reasons why we see a ‘muted Opposition’: Rahul Gandhi Congress leader Rahul Gandhi on October 27 termed as a “big step” the Supreme Court appointing a three-member panel of cyber experts to probe the alleged use of Israeli spyware Pegasus for surveillance of certain people, and [expressed confidence that truth would come out](. Asserting that alleged snooping using Pegasus is an “attempt to crush Indian democracy”, Gandhi said it is a “big step that the Supreme Court has said that they are going to look into this matter. I am confident that we will get the truth out of this”. “Pegasus spyware was ordered either by Prime Minister or the Home Minister,” Gandhi said. “If the PM has done this, we would like to know why is the PM doing an illegal act,” he asked, adding that “Using of Pegasus is illegal in India. Prime Minister is not above the Law.” “We were asking three basic questions — who authorised Pegasus, which agency, which person authorised Pegasus as we all know Pegasus cannot be bought by a private individual, it has to be bought by a government; second question was who was it used against; final thing was, did any other country have access to information of our people,” the former Congress chief said. “If the data of Election Commission or Opposition leaders’ data is going to PM, it is a criminal act. If you are using it to tackle terrorism, then it is a different thing. But using data for PM’s personal use is a totally criminal thing,” Gandhi said. “Governments have been dropped, for example, in Karnataka, using Pegasus,” he noted. “The government was attacking national security. If the data of our Election Commission, Opposition leaders or Chief Ministers are held outside India, they are attacking national security,” Gandhi noted. Gandhi said it is not a political matter but an existential matter. “And this is one of the reasons why you see a muted Opposition,” he added. [underlineimg] India criticises China for its new land border law [India on October 27 hit out at China]( for its “unilateral” decision to bring about a new land border law and said it is a matter of concern as the legislation can have implications on the existing bilateral pacts on border management and on the overall boundary question. External Affairs Ministry Spokesperson Arindam Bagchi said India expects that China will avoid undertaking action under the pretext of the law that could unilaterally alter the situation in the India-China border areas. He said such a “unilateral move” will have no bearing on the arrangements that both sides have already reached earlier — be it on the boundary question or for maintaining peace and tranquillity along the Line of Actual Control (LAC). [On vigil: A file photo of an Army patrol in sub-sector North along the Line of Actual Control with China.]  Last week, China’s national legislature adopted the new law on the protection and exploitation of the land border areas, which could have bearing on Beijing’s border dispute with India. “China’s unilateral decision to bring about a legislation which can have implication on our existing bilateral arrangements on border management as well as on the boundary question is of concern to us,” Bagchi said. “Such unilateral move will have no bearing on the arrangements that both sides have already reached earlier, whether it is on the boundary question or for maintaining peace and tranquillity along the LAC in India-China border areas,” he said. Xinhua news agency reported last week that the law, which becomes operational from January 1 next year, stipulates that “the sovereignty and territorial integrity of the People’s Republic of China are sacred and inviolable”. [underlineimg] Supreme Court refuses bail to gangster Abu Salem in 1995 Pradeep Jain murder case The Supreme Court on Wednesday [refused to grant bail to extradited gangster Abu Salem]( who is serving life imprisonment in the 1995 murder case of Mumbai-based builder Pradeep Jain. A bench of Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli said, “This is an application filed on behalf of the applicant/appellant seeking bail during the pendency of the appeal. Having heard counsel for the parties and carefully perusing the averments made in the application, we are not inclined to grant bail to the applicant/appellant”. The bench, however, taking into consideration the facts and circumstances of the case, directed the Registry to list his appeals against the February 25, 2015 verdict of the special TADA court, for final disposal in the third week of November 2021. On February 25, 2015, the special TADA court had awarded Salem life imprisonment for murdering the builder, along with his driver Mehndi Hassan. Another accused in the case Virendra Jhamb’s sentence was set off against the period of detention undergone by him in prison during the various stages of investigation in the case. [underlineimg] Aryan Khan bail hearing: Arguments to continue on October 28 The [Bombay High Court will continue hearing the bail plea of Aryan Khan]( the son of Bollywood actor Shah Rukh Khan who has been arrested in a drugs case, on Thursday when the NCB will present its arguments. Justice N.W. Sambre began hearing the bail application on Tuesday. On Wednesday, Aryan Khan’s counsel Mukul Rohatgi, co-accused Arbaaz Merchant’s lawyer Amit Desai and advocate Ali Kaashif Khan Deshmukh, who appeared for Munmun Dhamecha, completed their arguments. After the hearing which went on for over two hours, Justice Sambre said he would hear Additional Solicitor General Anil Singh, who is representing the Narcotics Control Bureau (NCB), on Thursday. “Tomorrow we will try to finish it,” the judge said. Aryan Khan (23), Merchant and Dhamecha were arrested along with others on October 3 following a raid by the NCB on a cruise ship off the Mumbai coast and alleged seizure of drugs. They approached the HC last week after a special court for NDPS Act cases rejected their bail pleas. [underlineimg] Plenty of Congressmen are coming in, says Amarinder Singh on new party Claiming that several Congress members were in touch with him, former Punjab Chief Minister [Amarinder Singh on Wednesday said he would launch his new party as soon as the Election Commission cleared the name and the symbol](. “Our lawyers are working on it and they are in touch with the Election Commission. As soon as the Election Commission clears the name and symbol, I’ll share it. Many people from the Congress party are in touch with me and they will come out in the open when the time comes. I promise you one thing: that we will contest all 117 Assembly seats. Whether we fight in alliance or whether we fight on our own, time will tell,” he told reporters. “Plenty of Congressmen are coming in. We are waiting for the opportune moment. But I will not take their names. Already, my supporters are being harassed,” said Capt. Amarinder. Asked how many MLAs were in touch with him, he quipped: “If Rahul Gandhi needs to have back-to-back meetings with Punjab Congress MLAs, what does it mean?” He rejected the Congress’s claims that a majority of the MLAs opposed his continuation in office and said, “Once they [party leadership] made up their mind to replace me, all these excuses are being made.” Pointing out that the so-called 18-point agenda of the Congress for his government was nothing but part of the Punjab 2017 manifesto, he said the ‘Kharge committee’ was clearly told that 92% of all the poll promises had been fulfilled. Taking on his detractors, particularly State party president Navjot Sidhu and State Home Minister Sukhjinder Randhawa, Capt. Amarinder accused them of indulging in petty politics. “We will fight and defeat Sidhu from wherever he contests the upcoming Assembly polls,” he said, adding that since the former had taken over the Punjab Congress reins, there had been a 25% drop in the party’s popularity, as per his survey. Slamming the Punjab government over its repeated denial of any serious security concerns, Capt. Amarinder said there was something very wrong and dangerous happening at the borders, which the state could ill-afford to ignore. He refuted allegations that the Border Security Force (BSF) would take over the State’s administration or will be deployed in Golden Temple etc, and said such misconceptions were being spread by certain people to score brownie points in the run-up to the Assembly elections. “The BSF is here for helping maintain national security as we are a border state,” he said, calling for full support by the state to the Centre in the interest of national security. He added that he will soon lead a non-political delegation of agricultural experts to meet the Union Home Minister to discuss possible solutions to the ongoing farmers’ agitation. Trashing allegations against his Pakistani friend Aroosa Alam, Capt. Amarinder termed as baseless the charges of money being sent out by her. Asking if Aroosa was the only issue left in Punjab, he questioned the intention of Randhawa in raising the issue now after never raking it up all these years. Aroosa had been visiting him for 16 years and he would definitely invite her again, Capt. Amarinder added. [underlineimg] Covid Watch: Numbers and Developments The number of reported coronavirus cases from India stood at 3,42,28,784 at the time of publishing this newsletter, with the death toll at 4,56,365.  The [Government of India has applied for loans from the Asian Development Bank (ADB) and the Asian Infrastructure Investment Bank (AIIB)]( to procure as many as 667 million doses of COVID-19 vaccines. The Manila-based ADB, in which the U.S. and Japan are the biggest shareholders, and the Beijing-based AIIB, where China and India are the biggest shareholders, are in the process of considering the loans. The ADB is expected to lend $1.5 billion and the AIIB around $500 million for the vaccine purchase by the Government of India, which has been made under the ADB’s Asia Pacific Vaccine Access Facility (APVAX) initiative. Launched in December 2020, APVAX offers “rapid and equitable support to its developing member countries as they procure and deliver effective and safe COVID-19 vaccines”. The 667 million doses will, however, have to be vaccines qualified by the World Health Organization (WHO). Covishield is among those vaccines, but Covaxin is still awaiting the green light with a final assessment scheduled for November 3. 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