The Supreme Court’s move on Wednesday in the Pegasus case to appoint an expert committee, whose functioning will be overseen by a retired apex court judge, is a welcome and an emphatic reassertion of its role and responsibilities as the custodian of individual rights enshrined in the Constitution.
The three-judge bench, headed by CJI N V Ramana, called the “limited affidavit” submitted by the Union government in the Court in response to the petitions that alleged use of a spyware for surveillance on private citizens as an “omnibus and vague denial” and rejected the government’s plea to let it constitute an expert panel to investigate the issue.
The SC order broadly addresses three issues that have been flagged in the Pegasus row — the citizen’s right to privacy, judicial review when the executive invokes national security, and the implications of surveillance on free speech.
The Court, pointing to its own judgment in K S Puttaswamy, has said that “right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy”. While agreeing that it is not an absolute right, the Court has said any restrictions “must necessarily pass constitutional scrutiny”.
Any surveillance or snooping done on an individual by the state or any outside agency is an infringement of that person’s right to privacy. Hence, any violation of that right by the state, even in national interest, has to follow procedures established by the law.
The Court has also drawn a link between surveillance, especially “the knowledge that one is under the threat of being spied on”, and censorship, particularly self-censorship, to reflect on the “potential chilling effect that snooping techniques may have”.
The chilling effect surveillance can produce “is an assault on the vital public-watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information”.
The order is a strong rebuttal of the government’s specious and self-serving use of national security as an alibi — a catch-all phrase used these days to criminalise all forms of dissent. The Court has ruled that the state does not get a “free pass every time the spectre of ‘national security’ is raised”. This also means “no omnibus prohibition can be called for against judicial review” if the matter impinges on national security: In effect, the government will have to explain to — and convince — the Court why it wants to avoid disclosure.
The Court has constituted a panel of experts under former SC judge Justice R V Raveendran. It has sharply defined the questions it needs to ask and find answers to: Was any Pegasus suite of spyware acquired by the central or any state government or any central or state agency for use against the citizens of India?
If any government agency has used it to snoop on Indian citizens, under what law, rule, guidelines, protocol or lawful procedure was such deployment made? These are vital questions at the heart of a citizen’s basic rights. The letter and spirit of the court’s order will be tested by how the Justice Raveendran panel addresses them.
This editorial first appeared in the print edition on October 28, 2021 under the title ‘Supreme Custodian’.