The Supreme Court’s recent record on civil liberties has not been inspiring, especially where the cryptic phrase ‘national security’ is uttered. The rationale has been that the government is best placed to assess the impact on national security as it is the one overseeing all intelligence agencies and enforcement efforts. Hence, courts must allow considerable deference rather than coerce the government into sharing details that may compromise national security. Any critique of the court’s rationale for deferring to national security is hampered by the recent judgments marked by what they omit rather than what they state: the reasons. Hence, the Court’s order on October 27 forming a committee to probe the use of military grade spyware in India on Indian citizens was refreshing.
It is telling that the order begins with a quote from George Orwell’s 1984 . The allegations against the government were indeed Orwellian: at considerable expense, the government infringed the right to privacy of several leading journalists and politicians by deploying spyware on their phones to monitor all communications. There are even graver allegations that Pegasus was used to implant false documents and evidences on the devices of persons under surveillance. The government supposedly did so through a software named Pegasus whose developer, the NSO Group, purportedly sells it only to certain undisclosed governments and the end user of its products are “exclusively government intelligence and law enforcement agencies”.
No filing of an affidavit
The Constitution mandates that any restriction on the right to privacy must be through a valid law, be necessary to meet a legitimate purpose and be proportionate, i.e., there is a proper balance to be achieved between that purpose and the harm caused by limiting the right. It is likely that the snooping, if any, through Pegasus may not be sanctioned by any law to begin with, else the government would have filed an affidavit to that effect as nudged by the apex court. Instead, the government has repeatedly relied on a Minister’s statement in Parliament denying the snooping allegations. Representations made in Parliament are generally protected by parliamentary privilege and consequences for false or misleading statements are rare. This is unlike an affidavit in court proceedings where such communication is punishable with imprisonment.
The Supreme Court observed that there is a broad consensus between the government and the aggrieved petitioners that unauthorised surveillance/accessing of stored data from the devices of citizens for reasons other than nation’s security would be illegal, objectionable and a matter of concern. The only question that remained was whether such unauthorised surveillance and access of data had taken place in this case. To the surprise of no one, in the face of evidence of snooping produced by the writ petitioners themselves, the government resorted to ritualistic incantation of ‘national security’ to avoid providing answers in affidavit.
Thankfully, the Supreme Court did not buy these omnibus assertions to desist from interference. It said national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Rightly, the Court observed that in a democracy governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards grounded in legality, necessity and proportionality. Hence, where the government refuses to divulge the information sought, it is incumbent on the government to not only specifically plead the constitutional concern or statutory immunity but also justify the same in Court on affidavit.
The Court’s acknowledgement that the allegations of snooping have some weight go a long way. Yet, the Committee’s conduct in investigating these allegations must go further. The investigation must be swift and its finding must be made public (redactions, if any, must be strictly necessary ones) to avoid ‘death by committee’. It is not unheard of that controversies on denial of civil rights are given a quiet burial when the public scrutiny wanes with time.
Ramesh Kalpathy Vaidyanathan is Managing Partner & Suyash Sarvankar is Associate, Advaya Legal