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How do we read the Supreme Court’s Pegasus order

Apar Gupta writes: The Supreme Court's move for independent probe is an important step towards fixing accountability.

Written by Apar Gupta |
Updated: October 29, 2021 7:29:15 am
The third and final feature of the judgment is rejecting the suggestion by the Solicitor-General to constitute a government committee of experts.

The Supreme Court of India has appointed a committee presided by Justice (Retd.) R V Raveendran to inquire into the Pegasus revelations.

The judgment comes at a time when the principal author of the judgment and the Chief Justice of India N V Ramana, has noted, in the context of institutional independence, that when there is “a lot of discussion about the pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect institutions.”

Here is a tacit acknowledgement of a general environment in which public trust is lacking in the judiciary. In this backdrop, the order of the court constituting the committee attains significance for three clear reasons.

The first is the court’s continuing insistence on transparency and disclosure by the Union government. When the batch of petitions came for active hearing before the Supreme Court of India in August, the Union government first sought time to study them, and thereafter refused to provide any meaningful response.

The only filing made in court was a limited affidavit, containing short paragraphs of generalised denials and the sole annexure of a statement by the Minister for Electronics and IT before Parliament. Immediately, the Supreme Court pointed out that these are inadequate and provided further time. However, till date this is the only written statement filed in court by the government.

Such a legal stratagem can obstruct a fair judicial determination, but it is far from novel. As noted by the court in the Anuradha Bhasin judgment on the internet shutdown in Jammu and Kashmir, “the State initially claimed privilege, subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before this Court.

In our opinion, this is not a valid ground to refuse production of orders before the Court…” This trend is unbecoming of the seriousness of constitutional adjudication, and the Supreme Court notes with dismay a similar tactic in oral arguments when, “the learned Solicitor General suggested that many of these reports are motivated and self-serving”. As per the court, “such an omnibus oral allegation is not sufficient…” It further noted, “There has only been an omnibus and vague denial in the limited affidavit”.

Hence, it is clear from a reading of the judgment, that the court has accurately assessed the need for disclosures by the Union government on Pegasus, beyond bald denials and ad hominem attacks.

The second reason is the Supreme Court’s firm approach towards the national security submissions by the Union government. There are two aspects to this argument that are unbundled by the judgement. The first relates to the refusal to provide any information to the court. Here, the court states, “we had made it clear… we would not push… to provide any information that would impact national security”.

The court correctly applied the settled convention on legal pleadings and affidavits by asking the government to, “necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns.”

However, as noted above, this was not done. The second aspect of the national security argument is how the court balances it with the fundamental right to privacy. Here, drawing from the framework of the K S Puttaswamy judgment on the right to privacy, where the standards of legality, necessity and proportionality are prescribed, the court specifically states 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”.

These are significant observations that, when followed as precedent, will bolster confidence in constitutional adjudications especially when courts demand evidence on arguments of “national security” to avoid generalised statements made to evade accountability.

The third and final feature of the judgment is rejecting the suggestion by the Solicitor-General to constitute a government committee of experts.

Here, the court correctly notes that even though the Pegasus revelations were first made on November 1, 2019 (‘WhatsApp confirms: Israeli spyware was used to snoop on Indian journalists, activists’, IE), there has been little movement on any official inquiry.

It also records the genuine apprehension of the petitioners, many of whom are victims of Pegasus, that since the sale of this malware can only be made to governments, they fear the involvement of state agencies. The court strikes a fine balance by constituting an independent committee, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country”.

The court’s terms of reference include queries on, “What steps/actions have been taken by the Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts”, and, “Whether any Pegasus suite of spyware was acquired by the Union of India, or any State Government, or any central or state agency for use against the citizens of India”. The constitution of this committee marks an important step towards accountability for the victims and the larger public on the use of Pegasus.

At the same time, it is important to be measured in public response. The Supreme Court has, by any objective assessment, observed fidelity to constitutional adjudication. It comes at a time when there exists a perceptible disenchantment with institutional responses to violations of rights and threats to our democracy.

Hence, the constitution of this committee provides hope. At the same time, any honest assessment should consider the more challenging tasks ahead. These include the functioning of the committee and the cooperation of government witnesses, the publication of the report so as to ensure public confidence and, ultimately, the directions and remedy provided by the Supreme Court. Just as public confidence is not broken by a single action, repairing it will be a long road.

This column first appeared in the print edition on October 28, 2021 under the title ‘Pushback on Pegasus’. The writer is the executive director of the Internet Freedom Foundation

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