Pegasus is alleged to have been infiltrated into the phone and other gadgets of individuals collecting information. The Hon’ble SC was called upon to examine an allegation of the use of technology, its utility, need, and alleged abuse. The Court further constituted a committee to look into the allegations and facts of the case. Hence, the Court awaits the committee report.

By: Hemani Khadai

In September 2018, a report was released by CITIZEN LAB based at the University Of Toronto, Canada. The report mentioned the software capabilities of a “spyware Suite” called Pegasus. According to the report, Pegasus is produced by Israeli Technology Firm, viz., the NSO Group. This report also indicated that individuals from 45 countries were suspected to be affected by such Software. 

What is Pegasus?

According to the reports, the Pegasus software can be allegedly used to compromise the digital services of any individual through zero-click vulnerabilities, i.e., without requiring any action on the part of the target of the Software. 

If the Pegasus infiltrates an individual’s device, it allegedly can access the entire data on the device of the respective individual.  Additionally, Pegasus has real-time access to emails, texts, phone calls, and the camera and sound recording capabilities of the respective device. 

Conclusively, if the device is infiltrated using Pegasus, the total control of the device is allegedly handed over to the Pegasus user. With that control, the Pegasus user can remotely control all the functions of the device & can also switch features ON & OFF.

As per the reports, the NSO Group allegedly sells this extremely powerful Software only to certain undisclosed Governments. As per NSO’s own website, its end-user are “exclusively government intelligence & law enforcement agencies”.

Alleged Use of Pegasus?

In May 2019, Pegasus infiltrated the devices of WhatsApp users due to vulnerability in its software. It included the devices of certain Indian users as acknowledged by then Hon’ble Minister of   Law and   Electronics and   Information Technology in a   statement made in the   Parliament on   20th November 2019.

Similarly in July 2021, a long investigative effort (based on 50,000 leaked numbers) indicated Pegasus software’s use on various private individuals.  These 50,000 numbers were allegedly under surveillance by the clients of the NGO Group through Pegasus Software.

Later it was found out that nearly 300 of these numbers belonged to Indians, most of whom were senior journalists, doctors, political persons & some court staff.

In the present case of Manohar Lal Sharma v. Union of India (W.P.(Crl.) No.-000314 / 2021), at the time of filing of Writ Petitions, nearly 10 Indian’s devices were allegedly forensically analyzed to confirm the presence of the Pegasus Software. The Petitioners included the direct victim of the Pegasus attack & Public Interest Litigants. 

Issues raised?

These Petitioners raised the issue of inaction on the part of the Respondent, i.e., Union of India, to consider the allegations raised relating to the cyber-attack on the citizens of India. 

Considering the alleged fact that NSO only sells its Software to vetted governments, according to Petitioners, either foreign govt. or certain agencies of the Union of India are using such Software on citizens of the country without following the due procedure established by law.

So, most of the Petitioners aimed at seeking an independent investigation into the allegations. 

Responding to the Petitions, only a “limited affidavit” was placed on record by the Respondent-Union of India mentioning the security & defense of the nation, which the Court later rejected on the grounds of insufficiency & responded that “it is a settled provision of law that the Court does not have a power of judicial review in cases of national security, whereas this does not mean that the state gets a free pass every time the “national security” is raised.

Petitioners and their concerns?

A petitioner claimed that his phone was directly affected by the Pegasus. He mentioned that Pegasus enables an entity to not only surveil or spy on an individual but also allows them to implant false documents & evidence in a device.

Mr.   Shyam   Divan,   learned   Senior   Counsel appearing on behalf of the Petitioner, submitted that once such large cyberattack & threat has been brought to the knowledge of the Respondent-union of India, it is the responsibility of the state to protect the fundamental rights of the citizens, particularly when there is a risk that the foreign entity made such an attack.

The Supreme Court observed that “At the outset, certain nuances of the right to privacy in India its facets and importance, need to be discussed. Historically, privacy rights have been ‘property centric’ rather than people-centric”.

The Supreme Court, meanwhile, also contextualized the issues raised in the batch of petitions by mentioning that, “we live in an era of information Revolution, where the entire lives of individuals are stored in the cloud or a digital dossier & we must recognize that while technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach the sacred private space of an individual.”

The Court referred to Justice K.S. Puttaswamy Vs. Union of India acknowledging that the Right to privacy is directly infringed when spying or surveillance is done on an individual either by state or an external agency. 

The Court said that the use of such alleged technology ought to be evidence-based.

In a democratic country governed by the rule of law, any kind of indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards by following the procedure established by law under the Constitution.

Further, Due to insufficient information and denial to provide further information to the Court in a limited affidavit by the Union, the Court accepted the prima facie case made out by petitioners to examine the allegations made. 

The Supreme Court held that “the petitioners do not contend that the state should not resort to surveillance/data collection in national security matters. They have a complaint regarding misuse or likely misuse of spyware in violation of the citizens Right to privacy of the citizens”.

The Court acknowledged that any unauthorized surveillance/accessing of the stored data from the phones & other devices of citizens for reasons other than the nation’s security would be illegal, objectionable & a matter of concern.

The decision of the Supreme Court?

Considering all the facts, the Supreme Court passed an order to appoint an Expert Committee supervised by a retired Supreme Court Judge.

Reasons for passing the order?

1. Right to privacy and freedom of speech are alleged to be impacted, needs examination thereto.

2. The entire citizenry is affected by such allegations due to the potential chilling effect.

3. No clarity was provided by the Respondent-union of India regarding actions taken by them for the protection of Indian citizens.

4. Seriousness accorded to the allegations by foreign countries & involvement of foreign parties.

5. Calculating the possibility that some foreign authority, agency, or private entity is involved in placing citizens of India under surveillance.

6. Allegations that the union or state governments are a party.

7. Limitation under Writ Jurisdiction to delve into factual aspects. 

The Court denied Respondent-union of India’s plea to allow them to appoint an expert committee for investigating the allegations as they themselves are facing allegations.

Allowing their plea would violate the settled judicial principle against bias, i.e., that “justice must not only be done but also seen to be done”.

Constitution of the committee?

With the above observations, the Court ordered to constitute a Technical committee comprising three members, including experts in cyber security, digital forensics, networks & hardware whose functioning will be seen by Justice R.V. Raveendran, former judge, Supreme Court of India. The learned judge will be further assisted by members listed in the order thereto. Thereafter, the committee will prepare a report after a thorough inquiry & place it before the Court. 

In Bar Association v. State of Kerala & Ors., the court observed that the trial courts are the pillars of the Indian judiciary. The appellate courts are merely passing judgment on their own rulings. If there is no sufficient infrastructure, the justice delivery system will be jeopardized.

By: Rashi Jain, SOA National Institute of Law

The Kerala High Court took great offense to government red tape on Tuesday, resulting in a 24-year delay in the construction of a District Court Complex in Idukki, Kerala.

The statement was made by Justice PV Kunhikrishnan while giving a ruling requiring the State government to expedite the transfer of land for the construction of the court complex, which was first proposed in 1997.

The Court emphasized the critical role that trial courts play in the judicial system and made no apologies for attributing the delay in providing necessary facilities on the government’s red tape.

“The trial courts are the backbone of the Indian Judiciary. They are the decision makers in a lis. The appellate courts are only judging their decisions. If there is no proper infrastructure and proper atmosphere for the decision makers in the trial courts, that will be a threat to the justice delivery system itself. The present case is one such case, which will show the sorry state of affairs as far as the infrastructure of a court and the attempt to solve the issue is sabotaged because of red tape rules,” the judgment said.

Justice Kunhikrishnan paraphrased what Chief Justice of India NV Ramana said in a recent lecture:

“Good Judicial infrastructure for courts in India has always been an afterthought. It is because of this mindset that courts in India still operate from dilapidated structures, making it difficult to effectively perform their function. Judicial infrastructure is important for improving access to justice and to meet the growing demands of the public that is more aware of its rights and is developing economically, socially and culturally. It is baffling to note that the improvement and maintenance of judicial infrastructure are still being carried out in an ad-hoc and unplanned manner.”

The decision was made in response to a petition filed by the Bar Association of Idukki (IDA) expressing its members’ dissatisfaction with the fact that the three courts and affiliated offices in the Idukki district have been operating with minimal resources.

The petitioners contended that it has long been the ambition of lawyers, advocate clerks, and other litigant public to have a court building for the courts and its offices.

The petitioners claim that the following series of events led up to this case:

• The subject of establishing was raised nearly two and a half decades ago in 1997 when the President of the Idukki Bar Association submitted a request to the Idukki Development Authority.
• Following that, in 1988, the IDA issued an order granting advance possession of two acres of land to the Registrar of the High Court of Kerala for the construction of a judicial complex subject to Government permission.
• While the IDA was defunct in 2007, the Registrar (Subordinate Judiciary) made a request for clearance and transfer of land to the Addl. Chief Secretary, Home Department, Thiruvananthapuram.
• Based on this plea, the State government issued an order in 2019 stating that the District Panchayat will retain the title of the land and authorization was allowed to use the site for the purpose of constructing a court complex.
• However, in 2021, the government issued a new order canceling the 2019 order and stating that in order to hand over the requisite land for the construction of the court complex, the Panchayat Director must submit a new proposal to the government.
• According to the petitioner, there is no rationale for issuing the 2021 order, which supposedly does not include the reasons for canceling the prior order and was issued without the petitioner or the High Court being heard.
• As a result, they petitioned the High Court for instructions to vacate the 2021 order and to direct the government in question to take suitable actions to build a judicial complex in Idukki.

The petitioner’s objections were backed by Standing Counsel for the High Court, who recommended that any additional delay on technical grounds be ruled out by this Court.

While the State’s Government Pleader claimed that issuing the 2021 order was correct, the Court indicated that it cannot confirm the government’s position without hearing from stakeholders.

The court questioned the government’s logic for canceling the 2019 directive barely two years after it was issued. It did, however, welcome the government’s submission that it would not obstruct the allocation of the essential property in accordance with the law.

The Court ruled that the State government might require the Revenue Department to take the appropriate steps to ensure that the land referred to in the 2019 ruling is allotted for the construction of the court complex in Idukki within a reasonable time period.

As a result, the Court asked the government to provide the required instructions within six weeks, after which the responsible authorities are to ensure that the building of the court complex is completed as soon as possible.

“Idukki is one of the important district in our State… As I observed earlier, without proper judicial infrastructure and a proper atmosphere to administer justice, the judiciary can not function. I am sure that the Government will cooperate with the High Court and will see that the dream of the Idukki people to get a new court complex is fulfilled soon,” the Court stated in conclusion.

A single bench of the Madras High Court consisting of Justice S.M. Subramaniam ruled that the collection of cash handling charges by SBI from stamp vendors is illegal and without authority

By: Likivi K Jakhalu, Campus Law Centre, Delhi University

In the present Writ Petition, the Petitioners/ stamp vendors sought directions from the Court to direct the Respondents/ State Bank of India to waive off all cash handling charges collected from the petitioners, in accordance with the Official issued via the Reserve Bank of India.

The stamp vendors argued that since the money is deposited into Government accounts by the stamp vendors on behalf of the Government through Treasury Challans, the transaction cannot be considered a private transaction.

While considering the issues raised, the High Court noted that the Counter Affidavits filed by SBI, which stated that “It is always open for the Petitioners to approach any other bank and continue their business operations” is an irresponsible statement.

The Court commented that the statement portrayed the administrative arrogance of the authorities in exercising their powers and that the statement’s tenor poses a threat to the public administration since stamp vendors have no option but to deposit money only in Government accounts at SBI Branches.

The Court observed that “The State Bank of India is a public sector and the authorities are the public servants. The petitioners are depositing cash in the Government accounts on behalf of the Government through Treasury Challans issued to them”.

Thus, the Court directed the Assistant General Manager, State Bank of India, to initiate appropriate disciplinary proceedings by conducting an inquiry and find out in what circumstances such statements are allowed to be made in the counter affidavit filed before the High Court.

Additionally, The General Manager of the State Bank of India has to sensitize the officials on how to develop good conduct with the customers and the citizens, who all are approaching the Bank for transactions. 

The employees/officials must be reminded that they are paid from and out of the transactions with customers and citizens. Consequently, they must maintain good conduct and respect the rights of those approaching the Bank.

The Court also noticed that SBI has been collecting cash handling charges even when the interim orders passed by this Court against such collection were in force.

The Court reproached SBI for not responding to the Commissioner of Treasury and Accounts, stating that whenever Governmental officials communicate such letters to SBI, the bank is bound to respond appropriately.

The Court felt the need to impart to SBI bank officials the courtesy they are obliged to demonstrate to officials carrying out administrative/ public functions.

They are expected not to neglect such letters or to proceed under the pretext that they need not respond to such letters. This nature of the conduct is also to be regarded as irresponsible on the part of the State Bank of India authorities.

As far as the reliefs sought for in the present Writ Petitions are concerned, the Director/ Commissioner of Treasuries and Accounts long back clarified that the collection of cash handling charges is not permissible. Thus, it is not appropriate for the State Bank of India to collect cash handling charges from the stamp vendors.

Given the facts and circumstances, the Court passed the following orders:

(1) The Collection of cash handling charges from the stamp vendors by SBI are declared illegal and without any authority. Accordingly, SBI is directed, not to collect any cash handling charges from the stamp vendors, while depositing cash in Government accounts through Treasury Challans in any of the branches of the State Bank of India.

(2) The General Manager of the State Bank of India is directed to communicate this order along with necessary circular/instructions to all the branches of the State Bank of India and upload the same in the official website of State Bank of India, enabling the citizens to know their rights.

With the above directions, this Writ Petition was thus allowed.

In Anish Markose v. the State of Kerala, the court said that most Judges lack the essential ability to judge on technological matters outside their jurisdiction, thus they should be even more hesitant in contracts including technical concerns

By: Himkiran Kaur Sethi, The Law School, University of Jammu

When it comes to adjudicating contract disputes involving technical concerns, the Kerala High Court has said that courts must recognize their limitations and defer to expert opinion.

Justice N. Nagaresh, a single judge, delivered the decision in response to a petition contesting the award of a contract for the construction of two public roadways.

In such cases, the Court stated that it is vital to take in mind the Court’s limits when dealing with technical concerns and to give expert opinion more weight.

“The courts must realize their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues, the courts should be even more reluctant because most Judges do not have the necessary expertise to adjudicate upon technical issues beyond their domain. The courts should give way to the opinion of experts unless the decision is arbitrary or unreasonable,” the court said.

It went on to declare that instead of micromanaging the minute elements of bidding contracts, the Court’s responsibility should be confined to preventing any illegality, arbitrariness, or malfeasance.

“The courts should not use a magnifying glass to scan tenders and make every small mistake appear like a big blunder. The courts must give “fair play in the joints” to Government and Public Sector Undertakings in matters of contract. The authority which floats the contracts or tender and has authored the tender documents is the best Judge as to how the document has to be interpreted. The courts will only interfere to prevent arbitrariness, irrationality, bias, malafides, or perversity,” the order stated.

The decision was made in response to a contractor’s appeal disputing the awarding of a contract to build two roads under the Kerala State Transport Project to another contractor.

The petitioner claimed that the other contractor lacked the required knowledge.

The Court did observe, however, that the bids and technical credentials of the bidders were subjected to a three-stage review by M/s.Louis Berger, who was appointed by the German Bank, Kerala State Transport Project, and the German Bank as technical experts.

The Supreme Court’s decision in Silppi Constructions Contractors v. Union of India and Anr. in which it was established that courts should exercise great caution while utilizing their judicial review powers in contractual or commercial situations, was cited by the Court.

The Court opined that “when the authority which tendered the work and the technical experts well-versed in the field have found that the 6th respondent (other contractors) satisfies the requisite experience, it would be inappropriate for this Court to conclude to the contrary unless of course, there are compelling circumstances.”

As a result, the Court decided not to intervene and rejected the petition.

In Badrilal v Suresh & Ors LL 2021 SC 624, the Hon’ble Supreme Court held that a subsequent agreement could not revoke a Will, and Revocation is only possible by the modes mentioned under section 70 of the Indian succession act, 1952

By: Hemani Khadai                                                                   

As per the facts of the case, Mangilal, the landowner (6 bighas 10 Biswas), executed a Will on May 6, 2009, and died on June 26, 2009. Under the said Will, he distributed a certain portion of land to his daughter Ramkanya (3 bighas 10 Biswas) and his brother’s son Suresh, Dilip & Prakash (1 bigha each).

Simultaneously, Ramkanya and Suresh entered into an agreement (dividing the land of Mangilal among themselves, i.e., 5 bighas & 2 bighas 5 biswa) dated 12 May 2009 bearing a thumb impression of Mangilal, despite the existence of Will. 

Subsequently, Ramkanya executed a sale deed on February 22, 2011, selling her portion of land (5 bighas) to Badrilal (Appellant).

To which, Suresh (Respondent) contested that the agreement is void as he is in possession of the admeasuring land sold, according to the Will. 

The Trial judge held that “the agreement dated May 12, 2009, was illegal and the will executed by Mangilal was enforceable, and Ramkanya had no authority to sell the land.”

According to the Will dated May 6, 2009, the learned Trial Judge declared Suresh as the landowner. He ruled that “the selling deed dated February 21, 2011, is void and unenforceable against Suresh.”

The petitioner’s appeal to the District Court against the aforementioned order was denied. The District Court changed the decision while dismissing the appeal, holding that the Will dated May 6, 2009, was binding.

The Appellant’s second appeal was dismissed by the learned Single Judge of the Madhya Pradesh High Court in the impugned judgment and order.

Proceedings in the Hon’ble Supreme Court

The Appellant contended in the Hon’ble Supreme Court that the Will dated May 6, 2009, was canceled by the agreement dated May 12, 2009, as the aforementioned agreement also includes a thumb impression of Mangilal. 

The Court acknowledged that “the question at hand is whether the May 2009 agreement will lead to revocation of the Will dated May 6, 2009”, specifically “where clause 8 of the agreement states that the Will previously executed by Mangilal is revoked.”

The Court further examined the question in light of Section 70 of the Indian Succession Act, dealing with the Revocation of unprivileged Will.

In view of Section 70, Revocation can be made only by following modes:– 

(a) By Execution of another Will or codicil. 

(b) A writing executed by the testator declaring an intention to revoke the Will and executed in the manner in which an unprivileged Will is required to be executed. 

(c) By burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same

The court noted that in the view of the above modes u/s 70, the Will dated May 6, 2009, was not revoked by Mangilal by executing a new Will or a Codicil; the Will was neither destroyed nor burnt by Mangilal or by someone else as per his express instructions. 

The Court mentioned that as per Appellant, the Will was revoked by testator Mangilal by agreement dated May 12, 2009. It was said that “Though clause no.8 of the said agreement recites that the Will earlier executed by Mangilal stands cancelled, Mangilal is not shown as a party to the agreement, but his thumb impression appears on the third page of the said document in the left margin.”

The Court concluded that the Will dated May 6, 2009, is not revoked by the subsequent agreement dated May 12, 2009 and stated that “Because the agreement lists only Suresh and Ramkanya as parties to the agreement, and Mangilal’s thumb impression on the third page of the document is not attested by two witnesses as required by clause c of Section 63 of the Indian Succession Act.“

On the subject of the legitimacy of the agreement dated May 12, 2009, the Court concluded that because it is neither registered nor the sale deed is executed by Mangilal, it will not have the effect of transferring the property to Suresh and Ramkanya.

The Court went on to state that the sale deed executed by Ramkanya in favor of the Appellant- Badrilal on February 21, 2011, will only be legitimate to the extent of the area obtained under the Will dated May 6, 2009.