Supreme Court Delivered on Initial Expectations on Pegasus, Follow-Up Crucial

Let us break the Pegasus judgment by the Supreme Court down.

(Photo: Harsh Sahani/The Quint)

Of the three branches of government in India, the judiciary has been forced to carry the burden of protecting the people’s right to privacy. Since 2017 when the court held that the right to privacy is a fundamental right under the Indian Constitution—triggered by government lawyers formally submitting that it was not a fundamental right—there have not been any significant legislative enactments or executive actions to safeguard this right.

On the contrary, threats to privacy and freedom of expression have been mounting through growing surveillance and cyber intrusion activity, intermediary rules that undermine internet freedom, and the lack of a data protection law.

Therefore, when the Pegasus project revealed that several Indian journalists, ministers, activists, and others had been spied on, and the government failed to provide answers, all hopes were pegged on the Supreme Court.

Previous Pegasus revelations from 2019 had resulted in no progress in terms of responsibility being determined or remedy being provided. The court delivered on initial expectations in its October 27 order.

Supreme Court Does More than Constitute a Committee

The court has constituted an expert committee reporting to it—and not the Government of India—to probe the allegations of the use of Pegasus spyware for widespread government hacking. This is an important, positive step. But there is a long way to go, and a lot rests on the manner in which the investigation is conducted.

In order to meaningfully protect fundamental rights, the committee will need to demonstrate its independence, its procedures must be shaped by transparency and accountability, its authority and access to relevant information must not be marred by overbroad national security concerns, and its findings, devoid of only the most sensitive, classified information identified by the court, must be available for public scrutiny.

In addition to kickstarting an expert investigation, the Supreme Court also made certain other notable observations. These have a bearing on strengthening the legal framework for privacy in India, and moves towards stricter accountability from the government in relation to its surveillance and cyber powers.

Supreme Court's Acknowledgment of Digital Age

First, the court acknowledged a critical truth of our digital present, namely that “we live in the era of information revolution, where the entire lives of individuals are stored in the cloud or in a digital dossier.” This recognition cements the notion that people’s online experiences are no longer merely an adjunct to offline realities, and surveillance in fact alters how people exercise their rights and freedoms; and contributes to the tightening of standards of necessity and proportionality.

Our digital devices and our data comprise a critical element of our individuality and freedom, and government moves targeting them represent intrusion to be carefully restricted by our constitution.

SC Decries Using National Security As a Shield Against Accountability

Second, it made it clear that national security cannot be used as a blanket shield against accountability: “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”. It categorically reproached the government for not taking a clear stand, or providing clarity on facts with respect to the Pegasus hack-for-hire allegations, despite ample opportunities.

This is consequential because the national security argument is being repeatedly invoked by the Union Government to dodge transparency and answerability, and this proclivity needs to be checked and privilege must be granted only in the narrowest of circumstances, because it effectively denies citizens an opportunity to seek remedy for violation of their rights, which renders the rights meaningless in effect.

As the court pointed out, when fundamental rights are at stake—whether around internet shutdowns or spyware-enabled hacking—the government cannot take an adversarial position and refuse to provide information.

The claim for privilege on national security grounds also has unique relevance in the Pegasus cases.

Pegasus enables hacking which is illegal under Indian law—there is no exception for the government hacking individuals in India, whether by itself or using private parties. Government hacking is outside the ambit of lawful interception under present Indian law.

The government's authority to conduct surveillance to protect national security does not permit illegal hacking of devices, or serve as a shield from accountability in court on the impact on citizens' fundamental rights. The national security argument cannot then be invoked to limit judicial interference. Fundamental rights simply cannot be restricted in the absence of law. And if no such hacking, or use of Pegasus, has taken place, then why was the government asserting such broad secrecy claims and national security privileges on the larger question of whether Pegasus was used?

Committee is As Strong as SC's Engagement Around It 

Third, the committee’s mandate has not been limited to a fact-finding inquiry on the use of Pegasus. It includes the authority to make recommendations on surveillance reform to prevent invasion of privacy, strengthening of cyber security infrastructure, grievance redressal, and related matters.

This task for the committee recognises that Indian law governmening interception is out of date, and that our country has a surveillance and cyber attack impunity problem. However, the meaningfulness of the committee’s recommendations will depend on how independent, transparent and inclusive its conduct is. It will also be impacted by how consistent and engaged the Supreme Court is on reforms in this area—there are already several pending challenges to the Indian government’s communications surveillance powers pending before constitutional judges.

How SC Follows Through the Pegasus Order is Significant

While the court’s order marks a good start, the job is far from done. The Supreme Court must ensure that the expert committee functions with utmost transparency and independence, and provides an opportunity to be heard to all affected and interested parties. Further, it is crucial that the government responses and actions are forthcoming and anchored in responsibility, remedy, and reform.

In this case, the destination is more important than the journey. In addition to ensuring that the government expeditiously provides unequivocal answers, and violation of rights is adequately remedied, the Supreme Court will ultimately have to call for an end to surveillance impunity through a legislative overhaul of India’s surveillance regime which is in line with evolving constitutional jurisprudence on the right to privacy, and the international human rights regime.

(Raman Jit Singh Chima is Policy Director at Access Now, an international digital rights advocacy and policy group, and a co-founder of the Internet Freedom Foundation. This is an opinion piece and the views expressed above are the authors' own. The Quint neither endorses nor is responsible for them.)