Landmark Pegasus verdict: Acknowledging citizens’ rights, warning State over surveillance

Reference to the Orwellian state which acts as the Big Brother, robbing people of their freedom, gives a perspective to the order

The Supreme Court’s order in the Pegasus case, delivered on Wednesday, is a judicial landmark. This ranks along with important, recent judgements like the 2013 Lalita Kumari case which made the filing of an FIR mandatory when a cognizable office is reported, the 2018 Navtej Singh case which legalised the rights of the LGBTQ community and the 2017 Puttaswamy case which recognised privacy as a fundamental right of citizens. The court even invoked the Kesavananda Bharati case judgement on the basic structure of the Constitution to give its order a context. The Pegasus judgement draws heavily on the privacy judgement in the Puttaswamy case and extends its jurisprudence to a new area that is of high practical import to citizens. This area is the nature and limits of the state’s activities in the lives of citizens and how they should be governed by constitutional rights. The bench headed by the Chief Justice of India (CJI) N V Ramana made a strong intervention for the right to privacy, and set up an independent committee under a former Supreme Court judge, which will investigate the charge of illegal use of the Israeli spyware Pegasus for surveillance of citizens, including politicians, businessmen, journalists and others.

At the jurisprudential level, the court’s order acknowledges three main issues which were brought before it by the petitioners through the Pegasus controversy.

It lays down the principles needed to deal with them and prescribes a course of action to be followed in the present case. These principles may be taken as guidelines that should govern interactions between the state and citizens and have the salience to address similar situations that may arise in future.

The first is that any surveillance on an individual done by the state is an infringement of the right to privacy and so any violation of that right should be done in accordance with the procedures established by law. It is important that the restrictions sought to be imposed should be reasonable and should conform to the demands of rule of law. The standards of legality, necessity and proportionality prescribed by the Puttaswamy judgement need to be followed in such situations also. The court is clear that “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning” and, “mere invocation of national security by the State does not render the Court a mute spectator”. The balance between privacy and security should not be upset arbitrarily by the state.

Right to secrecy

The second principle that the court has affirmed follows from this view of the primacy of the right to secrecy. The principle is that there is scope for judicial review even when the government invokes national security as the ground for curbing citizens’ rights. The court has stated this rather picturesquely with the observation that the state does not get a “free pass every time the spectre of ‘national security’ is raised”. It has underlined this with a clear assertion of its own powers that “no omnibus prohibition can be called for against judicial review”. That mandates the government to explain to and convince the court of its reason to avoid disclosure.

This is the basis of the court’s rejection of the limited affidavit filed by the government which contained only a general denial of the charges in short paragraphs and an annexure of a statement by the Minister for Electronics and Information Technology, Ashwini Vaishnaw, before Parliament. The court noted that ‘’an omnibus oral allegation’’ that ‘’many of these reports (about surveillance) are motivated and self-serving” are not sufficient as a defence and justification for its refusal to disclose the reasons for non-disclosure. The use of the words ‘’vague’’, ‘’omnibus’’, ‘’non-committal’’, ‘’non-serious’’ and containing no ‘’specific denial’’ about the affidavit shows what the court thought about the government’s refutation of the charges.

If the government took the position that the charges are wrong, it had to prove it with documents in the court. This is also in the interest of transparency. The court’s insistence on transparency and on the need for convincing proof is important because the trend of withholding information from the court is growing in the country. The law actually gives the court the power to consider an allegation as admitted by a party if it is not specifically denied by it. It did not exercise this power in this case, but the insistence on a convincing denial of the charge by the government with the support of proof will set a precedent for the future too.

New ground

Thirdly, the court breaks new ground when it examines the implications of surveillance for free speech. It has pondered on the effect of surveillance on the autonomy of the citizen and established a link between the victim’s sense of surveillance and censorship. It held that “the knowledge that one is under the threat of being spied on”, would amount to censorship, particularly self-censorship. The fear of surveillance and the thought of being under watch would lead to loss of ability to enjoy the freedoms and rights guaranteed by the Constitution. The court mentions in this context the “potential chilling effect that snooping techniques may have” on the conduct of citizens. It specifically states that such surveillance “is an assault on the vital public watchdog role of the press’’ and may ‘’undermine the ability of the press to provide accurate and reliable information”. The observation is significant because some of the citizens who were allegedly under surveillance are journalists.

While these are the main principles that emerge from the court’s order, the terms of reference that it has prescribed for the enquiry are expansive and go beyond the immediate charge. The committee has been tasked to ‘’enquire, investigate and determine’’ whether the Pegasus spyware was used on the phones or other devices of Indian citizens for any purpose and to find out whether it was acquired by the government or its agencies, along with the identities of the victims, and other matters that it might consider relevant. The committee also has to find out what steps the government took when it was reported in 2019 that WhatsApp accounts of citizens were hacked with the help of the Pegasus spyware. This is a comprehensive list of tasks and would cover every question that has been raised in the wake of the disclosures.

The court also wants the committee to test the efficacy of the existing surveillance laws to protect the citizens’ right to privacy. It expects it to make recommendations on how to prevent the state and non-state players from violating the right and to suggest a mechanism for citizens to report to on suspicion of surveillance. It wants the committee’s views on the setting up of a ‘’well-equipped independent premier agency to investigate cyber security vulnerabilities’’. It is a large and exhaustive mandate and if the committee is able to work it well, its outcome can have as good an impact on the issue of state surveillance of citizens as the Justice J S Verma committee’s report had on the laws on rape and sexual violence.

The issues raised by the court and the prescriptions, suggestions and observations that it has made, and even the choice of words and comments scattered in the judgement create a framework for the concern that the court clearly entertains about the possibility of state surveillance of citizens. It has not passed a judgement or even expressed a clear opinion, as it rightly should not at this stage of the case, but its concern and its determination to protect the citizens’ rights are clear and evident. Its reference to the Orwellian state which acts as the Big Brother, robbing people of their freedoms and rights, gives a perspective to the entire order. The order assumes its full significance when it is read in that perspective.

‘’We make it clear that our effort is to uphold the constitutional aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric. This court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights.’’ These are reassuring words. The court has told the Central and state governments to co-operate with the committee and provide it with all the information that it seeks from them. The success of the committee’s work will depend on it. It is premature to speculate on it now.

(The writer is an independent journalist)