Yesterday, the Supreme Court pronounced its order in a batch of petitions seeking an inquiry into the Indian Government’s alleged use of Pegasus, considered the world’s most powerful spyware, on devices of Indian citizens including journalists and activists. In its order, the Court constituted a committee of cyber security experts (to be overseen by a retired Supreme Court Justice) to probe the allegations and make recommendations about protection from such unauthorised spying in the future.
While the impact of the order and the conclusions arrived at by the Committee will only be known in time, the Court’s order is an important development in two respects.
First, it advances India’s jurisprudence on the scope of the right to privacy.
Second, it seeks to remedy certain pathologies that have crept into fundamental rights litigation in recent years and have threatened the efficacy of judicial review.
Privacy, Press Freedom and Surveillance
The Court begins by acknowledging the importance of informational privacy in the modern world where the “entire lives of individuals are stored in the cloud.” Indeed, it is this shift to the digital world that Pegasus exploits. Once a phone is infected with the software, it can access all the data on the phone, as well as record audio and video round the clock. What is more, as per reports, it can also be used to plant data on phones. Taking note of reports by experts that attest to these invasive capabilities of the software, the Court found that “indiscriminate” and “unauthorised” surveillance would amount to a violation of the right to privacy.
Building on its judgment in KS Puttaswamy the Court affirmed that the fundamental character of the right to privacy flows from “the inalienable human dignity and autonomy” of individuals. Accordingly, there exists a reasonable expectation of privacy which “enables us to exercise our choices, liberties and freedoms''.
The Court also drew out the chilling effect of surveillance both for citizens and journalists. The Court noted that “it is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship.” Similarly, surveillance would deter journalistic sources from volunteering information and prevent the press from performing its role as a public watchdog.
Significant Move for India’s Privacy Jurisprudence
While the relevance of chilling effect in the adjudication of unconstitutional State action is well established in India, the Court’s reasoning on this aspect is significant for India’s privacy jurisprudence in two ways.
First, the Court acknowledges the complex ways in which Government action (such as State surveillance) can operate at a structural level to curb individual autonomy. This is an important reaffirmation of the Court’s jurisprudence on the protection of “fundamental personal choices” of individuals.
Second, it acknowledges that fears associated with the chilling effect tend to be higher where the legal norms governing Government action are vague, or, as in the instant case, altogether unknown (since the Government’s specific actions in this case are unknown).
Considering these serious ramifications, the Court affirms that state surveillance must be met with strong judicial scrutiny through the proportionality test. This means the surveillance must be backed by law, must pursue a legitimate aim, must be “absolutely” necessary and must be proportionate.
Moreover, the Court notes that these considerations “ought to be evidence based”, implying that the Government cannot simply rely on assertions, but would have to furnish proof supporting its statements.
Pegasus Order Makes Judicial Review Effective
In light of the seriousness of the allegations involved, the Court directed the Government to file an affidavit responding to the said allegations. A sworn affidavit allows the Court to assess what and how specific information is known to a party and whether it can be relied upon. An opposing party through its affidavit can deny the allegations of the petitioners. In fact, certain rules of pleadings also state that facts not specifically denied by the opposing party will be taken to be admitted.
In this case, the Government filed a “limited affidavit” on the ground that it could not respond to all the allegations due to paucity of time. In its limited affidavit, the Government generally denied the petitioners’ specific allegations, asserting that they were based on conjectures and uncorroborated material.
The Government stated that the issue had already been addressed in Parliament by the relevant Minister. Notably, however, the Minister did not admit or deny whether Pegasus had been used, but merely stated that no illegal surveillance could take place in India.
The Court repeatedly expressed dissatisfaction with the limited affidavit filed by the Government and offered more time to file a comprehensive affidavit. The Government, through the Solicitor General, orally declined to do so on the ground that disclosure of facts would impact national security. The conduct of the Government in this case can be described as an insincere attempt to evade judicial review - on the one hand it contends that the allegations in the petitions lack corroborating materials and on the other hand it refuses to furnish material that it possesses to disprove the petitioner’s allegations. To the Court’s credit, it methodologically takes apart the Government’s line of argument.
Supreme Court Takes Apart Govt's Arguments
With respect to the Government’s submissions on the bonafides of the petitioners, the Court noted that subsequent petitions were filed by persons reported to be targets of surveillance, and that these petitions made out legal grounds that were then supported by a cross-section of reports from reputed news organisations and research organisations, as well as affidavits from experts.
The Court found that this material was enough to establish a prima facie case, and it held that the Government’s “omnibus oral allegations” that all such reports are “motivated and self-serving” would not outweigh the material brought on record. This finding is crucial given that it appears to be a regular litigation strategy of the Government to attack the motivations of petitioners’ who challenge executive action and this occasionally results in important petitions being rejected without an assessment of the material brought on record.
In the same vein, the Court also emphasised the obligation of the Government to provide materials that would be necessary to evaluate claims pertaining to fundamental rights violations. Relying on its judgments in Ram Jethmalani (2011) and Anuradha Bhasin (2020), the Court pointed out that in most cases it is the Government that is in custody of information required to effectively litigate and evaluate fundamental rights claims and it explained that the Government cannot seek to frustrate the judicial process by refusing to bring such information to light. The Court’s clear stance on this often overlooked aspect of fundamental rights litigation is an important counter-measure to the tendency of the Government to seek to benefit from secrecy over its functioning.
Indictment of Government On the Issue of National Security
The Court also indicted the Government from using “national security” as a magic spell that can wish judicial review away. In recent cases, such as Anuradha Bhasin and the Rafale case, the Government has often cited national security as a ground to restrict judicial review.
However, these assertions do not discharge the burden of explaining how exactly national security would be impacted by the divulgence of information to the Court. Indeed, the mere assertion by the Government that the issue involves concerns of national security ought not to incapacitate the guarantee of judicial review under the Constitution. This is especially because the structure of our Constitution allows restrictions on the grounds of national security but requires that the reasonableness or proportionality of these restrictions be evaluated by the Court.
In Pegasus, the Court clearly holds that the Government cannot get a “free pass” every time the spectre of national security is raised.
Instead, the burden on the Government is to plead on affidavit and prove why and how certain facts if disclosed will affect national security, which the petitioners can then respond to. Based on these pleadings, the Court will decide whether and to what extent the Government’s stand merits deference. Deference on grounds of national security cannot be attracted merely based on an assertion, and in fact doing so would incentivise the Government to increasingly invoke national security as a defence in fundamental rights cases.
As the Court notes, the main issue in this case is whether Pegasus has been used for reasons other than national security.
Holding Government Accountable
Most importantly, the Court sought to hold the Government accountable for its attempt to evade judicial scrutiny. The Court found that in the absence of specific denials by the Government or substantive justification of its stand in an affidavit, there is no option but to accept the prima facie case made out by the Petitioners. Accordingly, it constituted an independent Committee of experts to obtain information and examine the issue in detail.
The Court’s stern approach toward the Government’s refusal to divulge information and its insistence on the requirement to prove assertion with evidentiary material, demonstrates how the effectiveness of judicial review can be preserved in the context of a Government inclined to employ dilatory and evasive tactics. If replicated across cases where the Government adopts similar strategies, this approach can go a long way in securing enforcement of fundamental rights in India.
As a concluding thought, as one of us has argued here, the efficacy of directions passed by the Court is often dependent on the Court following up and monitoring compliance of its orders. It is a good sign that the Court has listed the matter after 8 weeks and has not disposed of the petitions with this order.
Indeed, the ultimate value of the Court’s order in this case may well depend on how proactively the Court removes roadblocks that the Committee may run into going forward.
(Vikram Aditya Narayan and Jahnavi Sindhu are Delhi-based advocates. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)