On October 27, 2021, the Supreme Court appointed an independent expert technical committee overseen by a former apex court judge, Justice R.V. Raveendran, to examine allegations that the government used Israeli spyware, Pegasus, to snoop on its own citizens.
The Court’s direction has been met with adulation. But the time to sing our paeans is not yet here. Much as the Court’s declarations of law brim with brio, its order still falls short of delivering justice.
No guarantee still
Faced with the Government’s resolute refusal to file a proper affidavit, either confirming or denying the use of Pegasus, the Court, one might have thought, would have issued a writ compelling the state to adduce evidence. Instead, it left the fact-finding to a committee of experts. There is no guarantee that a government that chose to remain silent before the Court will now somehow come clean before an external panel. The question then is this: should the Government fail to cooperate, how must the Court respond?
The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media. These reports revealed that hundreds of phone numbers from India had appeared on a global list of more than 50,000 numbers that were selected for surveillance by clients of the Israeli firm, the NSO Group. The NSO has since confirmed that its spyware is sold only to governments, chiefly for the purposes of fighting terrorism. The petitioners said that forensic analysis had confirmed the presence of Pegasus on the devices of at least 10 Indians, including some of those before the Court.
Is Pegasus Order Written Only to Earn Praise on Social Media?
Reading the order in the Pegasus matter, it is evident that the court has answered this question—but it is unwilling to act on the answer. The order, authored by CJI NV Ramana, has no choice but to come to the conclusion that the petitioners’ allegations are indeed true but hesitates to take the next logical step and hold the government accountable. Instead, what the court has done is set up a committee which will more or less cover the same ground as the court already did during the hearings and submit recommendations of a general nature which, in all likelihood, will be ignored by the government.
Reading the judgement from the start might give one the impression that the court genuinely cares about such things as the freedom of press, privacy, et al. However, this is the incorrect way to read the order.
Much of the judgement is fluff designed to elicit plaudits on social media and gushing headlines. The operative part of the Supreme Court’s order actually starts on paragraph 54 and this tells us why everything said before this was hokum.
The context for paragraph 54 is the fact that the Union Government consciously refused to respond with any details or particulars of the petitions filed. At best this is an admission of the truth of the petitioners’ case, at worst contempt of the court.
A clear path of accountability
The order recognises, correctly, that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy. This is not to suggest that all surveillance is illegal. But, as the order concludes, any limitation on a fundamental right must be proportional and based on evidence. “In a democratic country governed by the rule of law,” the judges hold, “indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution.”
In holding thus, the Court has effectively recognised that an act of surveillance must be tested on four grounds: first, the action must be supported by legislation; second, the state must show the Court that the restriction made is aimed at a legitimate governmental end; third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective; and, finally, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.
The test provides a clear path to holding the Government accountable. But for a coherent application of these standards the Court must arrive at a conclusion on facts. Ordinarily, in prerogative proceedings, evidence is taken on affidavit. In other words, the parties before the Court present their version of the facts through a sworn, written statement. The Court then appreciates the evidence to arrive at a deduction.
In the cases concerning Pegasus, each of the petitioners affirmed a set of facts, claiming that mobile phones of Indian citizens — from journalists and activists to politicians — had been subject to intrusion. In response, the Government refused to file anything more than what it described as a “limited affidavit”. Apart from a general denial of the petitioners’ case, this affidavit, the Court found, did not “provide any clarity as to the facts of the matter at hand.”
Supreme Court Hesitant in Taking the Govt Head On
To address this, Senior Advocate Shyam Divan insisted that the Cabinet Secretary be directed by the court to file an affidavit and clear the air. The court in paragraph 54 inexplicably brushes this plea holding that in light of the stated refusal to file an affidavit, no further purpose would be served! The court, it seems, is unwilling or unable to bring itself to take the government head on over its defiance.
It does not even accede to the setting up of a special investigation team as it did in previous cases to unearth the truth of the matter. Instead, it sets up a “committee” headed by a retired judge of the Supreme Court and expert members, with a mandate to look into the allegations made by the petitioners.
Justice RV Raveendran is a fine judge with an unquestioned reputation for impartiality and integrity. One is not in a position to affirm or deny the credentials of the other members of the committee but let us for the sake of argument assume that they are as competent and upright as the court says they are. There is no problem with the constitution of the committee. However, it has been handed a task that the court itself has refused to do – hold the government accountable.
Stay tuned for information on CLAT preparation and law related articles.
References:
- https://www.thehindu.com/opinion/lead/the-courts-order-on-pegasus-still-falls-short/article37274506.ece
- https://www.thequint.com/voices/opinion/supreme-court-ignores-where-there-is-a-right-there-is-a-remedy-adage-in-pegasus-order#read-more#read-more
Leave a Reply