It is startling to know that governments in India purchase very expensive Israeli software to bug the Opposition and suppress dissent. The revelations about the misuse of Pegasus spyware have shaken the world and even India has felt its reverberations. The Government has stonewalled queries on the subject, has refused to order any probe, and even allowed a whole Parliament session to be washed away as a discussion on the subject was denied. The Pegasus scandal matches the Watergate scandal that brought down U.S. President Richard Nixon in the 1970s, but here in India, business has been as usual.
There was a fact-finding judgment in May 5, 2021 by the Royal Courts of Justice Strand, London that was to look into “factual allegations” made by a princess that the software had been installed in her phone as well as those used by her her solicitors, her personal assistant and security by her husband (a high-profile ruler in the United Arab Emirates) in the case of the welfare of their two children. It was an example of how even the phones used by royals have been hacked using Pegasus. After the United States government determined that Pegasus was acting contrary to the foreign policy and the national security interests of the U.S., it blacklisted the NSO group by putting it on an “entity list”. But India has neither looked into the facts nor blocked the hacker.
In India, the suspected abuse of surveillance power followed by blatant denial of Right to Information requests and Parliament questions, defiant responses to Public Interest Litigation (PIL) notices and, above all, the ‘inaction’ of the Government are what have compelled the Supreme Court of India to act. On October 27, 2021, a Bench of the Court, led by the Chief Justice of India (CJI), N.V. Ramana, constituted a three-member independent expert committee to conduct an investigation (it will be overseen by a retired judge of the Court) and protect public faith in the constitutional system. In the world over, this is the first-ever inquiry ordered by any Chief Justice with such wide-ranging terms into spying by Pegasus. This initiative of the CJI will embolden civilians to question the suppression of rights and instil fear among rulers. It should reverse the chilling effect. This dynamic order evoked positive responses while some wanted greater relief than what was prayed in the original PILs.
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A worrying silence
The Union Government has been consistently silent on the question on whether it had or has invaded the privacy of hundreds of innocent non-accused citizens and what it has done with the collected ‘intelligence’. It has a constitutional duty now to justify its defence of ‘national security’ before the Court-appointed inquiry committee or face politico-constitutional consequences. More than anything else, what is worrisome is the Centre’s deafening silence.
The Court turned down the Government’s request to allow it to set up the inquiry committee, as the principles of natural justice will not permit the ‘accused’ to select his investigators. The Bench has enough reasons to suspect that the Government is a party to this unconstitutional action (Pegasus). It made it clear that allowing that request “would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done, but also be seen to be done’.”
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The use of the invasive spyware was noticed in May 2019 when WhatsApp claims that ‘Pegasus’ had infiltrated the devices of WhatsApp users; the fact of Indians being affected was acknowledged by the Minister for Law in November 2019; and when Amnesty International and Citizen’s Lab reported on June 15, 2020 of nine individuals in India having been targeted. The nation cannot afford to ignore the Pegasus Project, or the report of a consortium of 17 media organisations on July 18, 2021, which showed, based on its investigation, that a “list of over 50,000 phone numbers in more than 45 countries had been potentially targeted for surveillance by misusing Pegasus”. The list included the numbers of over 300 Indians, some of whom were senior journalists, doctors, lawyers, political persons and even court staff. WhatsApp, in 2019, said it had notified the Government that 121 Indian citizens had been targeted. Yet, there has been no response.
Privacy, a sacrosanct right
Though privacy was not a specifically guaranteed right earlier, unabated surveillance was never allowed. The Supreme Court emphatically defined it in R. Rajagopal in 1994. With the landmark order in 2017 by the Supreme Court declaring that the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy, the burden to secure this right has also fallen on the top court.
Snooping can be justified only on three counts: the restriction must be by law; it must be necessary and only if other means are not available, and proportionate (only as much as needed); and it must promote a legitimate state interest (e.g., national security), according to paragraph 325 of the nine-judge Bench judgment on privacy). Without establishing this justification, the Government cannot use ‘national security’, in the case of Pegasus, as an empty or lame excuse, because surveillance directly infringes on the privacy right. If the Government wants to justify the surveillance as authorised then it has to answer the question whether anybody has been prosecuted for terrorism with evidence procured by snooping. And who is the authority that decides the need and mode of surveillance? Without this information, the state cannot rely on the excuse of ‘national security’. The leaked list of phone numbers, which includes those of journalists, politicians and lawyers only raises the suspicion of abuse of surveillance power.
Injures freedom of speech
The Bench led by the CJI observed that surveillance injures the freedom of speech and results in fear based self-censorship. When it relates to the freedom of the press, it results in a chilling effect on the basic civil right of freedom of speech. Using the highly expensive software, Pegasus, is an assault on the vital public watchdog role of the press, which could undermine the ability of the press to provide accurate and reliable information which is needed for people to know about the acts of their elected government. The potential technological power of Pegasus must be challenged. The Centre’s complacency is worse than its alleged involvement that needs to be probed. In fact, the Court has faced criticism of ‘inaction’, giving a long rope to the Government, and refused to stay the notification issued by the West Bengal government, setting up an inquiry commission to investigate the revelations of the Pegasus Project. The Delhi-based lawyer, Gautam Bhatia, even wrote that the Court should ask the Government to answer whether it ordered spying on citizens who are not accused of any crime. If yes, it should be made liable. If the Government refuses to answer, or says ‘no’, what is the Court expected to do? This is what the committee must probe.
Ensuring the independence and the objectivity of members of the committee is not a mean task. The Court has explained how the chairman and other members were chosen with great care and research. The terms are specific: the committee has the task of finding answers to whether spyware was used to access conversations and information through the devices, the interception of the communications, who the victims were, which law authorised this, and who decided this on what basis and at what cost.
The defence and a pointer
The stock defence of ‘national security’ for snooping has provided, prima facie , grounds to believe the involvement of the ‘state’. The Court has explained: “the Petitioners have placed on record certain material that prima facie merits consideration by this Court. There has been no specific denial of any of the facts averred by the Petitioners by the Respondent — [the] Union of India”. Although it is “a settled position of law that in matters pertaining to national security, the scope of judicial review is limited”, the Bench was vocal in saying “this does not mean that the state gets a free pass every time the spectre of ‘national security’ is raised.” It is well within the four corners of its jurisdiction for the Supreme Court to constitute this committee as specifically prayed in the 12 PILs.
Using criminal spyware is not only a mere violation of Part III rights but is also a serious blow to freedom of the press, expression of dissent by the Opposition, and fearlessness of lawyers to challenge in courts the unconstitutional actions of the state. It undermines democracy and converts elected leaders into absolute dictators. The Supreme Court committee and Bench has the onerous duty of resurrecting the constitutional scheme of rule of law.
M. Sridhar Acharyulu is Former Central Information Commissioner. He is Dean, School of Law, Mahindra University, Hyderabad