SC Ignores 'Where There is a Right, There is a Remedy' Adage in Pegasus Order

Much of the Supreme Court judgment is fluff designed to elicit plaudits on social media and gushing headlines.

Did the Union of India or one of its agencies use NSO developed Pegasus to illegally hack into the phones of Indian citizens?

This question is at the heart of the writ petitions and PILs filed in the Supreme Court in the wake of the Pegasus revelations made by a global consortium of media outlets. The answer to this question has enormous implications for the freedom of speech and expression and privacy in India, if not democracy itself. One hoped that after the hearings which took place in August and September, the order of the Supreme Court would provide us some answer to this question.

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.

Constitutional Cases Serve Important Accountability Function

In law, if a party who has relevant information refuses to put it on record, an adverse inference can be drawn against such a party. If, for instance, a party who has a document with them that makes their case refuses to produce the same, the court draws the conclusion that they have no case and that is why they haven’t produced it.

There is another important aspect to this in the context of constitutional cases. Constitutional cases serve an important accountability function as they demand proof that the government has actually followed the law or has a lawful justification for its actions. The vaccines case earlier in the year showed the power of demanding reasons from the government for its actions.

The Pegasus case was an opportunity for citizens to put the government in a spot and demand answers.

This is only possible because of the vast powers vested in High Courts and the Supreme Court under the Constitution to demand such accountability from the government. However, when faced with the refusal of the Union Government to respond to any of the allegations pertaining to the use of Pegasus in any credible manner, the court simply shrugs its shoulders and moves on.

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.

Pegasus Committee’s Report is a Foregone Conclusion

The committee has no power to demand the appearance of government officials, summon documents or examine witnesses on oath. It has no experience in investigation of offences or even the lawful power to undertake such investigation. It has been tasked simply with answering the terms of reference and providing general “recommendations”. The report it will provide at the end of the day will at best be commentary on facts that are already well known.

The committee’s report is a foregone conclusion since it is quite unlikely that the Union Government will have a sudden change of heart and make its stand clear before the committee. Having defied the SC with all its powers of contempt and gotten away, what incentive is there for the Union Government to be transparent before the committee?

For all its wonderful rhetoric about rights and liberties, the court has essentially said this - “we know that your rights have been violated but there’s absolutely no remedy we can offer you for that.” What it has offered instead is a committee that will in all probability only reaffirm the petitioners’ case and say nothing new in the matter.

Ultimately, Government Gets Impunity

The order of the SC in the Pegasus is eerily similar to the one in the Anuradha Bhasin case concerning internet shutdowns in Jammu and Kashmir following the revocation of Article 370. There too the judgement marries high minded rhetoric about freedom of speech and the internet with a complete refusal to even mildly discomfit the government. Even the directions on when governments may impose internet shutdowns in the future have been casually discarded by Union and State governments across the country without fear of contempt.

One of the first lessons taught in law schools is that where there is a right, there is a remedy. One would assume that the SC, having acknowledged the petitioners’ right to privacy and free speech and noted their violation as a result of the use of Pegasus, would have proceeded to provide some remedy recognised in law to the victims. Instead, all they get is a committee and the government gets impunity.

(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)