Providing an overview of the Supreme Court’s recent interim order in response to petitions demanding a probe into the Pegasus Project revelations, PRASHANT PADMANABHAN explains the constitutional significance of the order.
ON October 27, 2021 the Indian Supreme Court passed an order in the Pegasus matter. The order is an attempt to safeguard the fundamental right to privacy of citizens beyond illegal surveillance by the State, as alleged.
The interim order reads like an expression of no-confidence in the elected government. Every Indian citizen must read this judgment to understand the stakes of the present political scenario. To facilitate the same, it should be translated to all regional languages and distributed to citizens in their medium of communication.
Though interim in nature, it is a watershed moment in Indian judicial history of India for various reasons.
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Background of case
The order arose out of a tussle between the executive and judicial wings of the State over the action to be taken on the allegations of snooping made out in the Pegasus Project revelations. The disclosure by NSO Group, the Israeli technology firm that created and markets Pegasus, that it sold its spyware only to “vetted governments” placed the Government of India in a defensive mode both in the Indian Parliament and before the Supreme Court.
Since the petitions alleged infringement of certain citizens’ right to privacy by the government, the latter was called upon to respond by the apex court.
The Supreme Court notes that there has been no specific denial of any of the facts alleged by the petitioners, by the union government, except a vague and omnibus denial in the “limited affidavit” filed as early as on August 16, 2021. The limited affidavit relied heavily on the statement by the Union Minister of Electronics and Information Technology Ashwini Vaishnaw on the floor of the House on July 18, 2021.
Though the government had claimed before the apex court that it will constitute a committee to examine the matter, the same was not being done till the Supreme Court disposed of the writ petitions. The government took three adjournments in August and September, but no detailed affidavit was filed by it. The court recorded that under such circumstances, it had no other option except to accept the prima facie case made out by the petitioners to examine the allegations made.
Also read: Pegasus tracking reporters portends dark future for Indian journalism
Parallel with Minerva Mills judgment
This is the first time after the Supreme Court’s landmark Puttaswamy judgment of 2017 that the right to privacy has been so clearly applied in a decision by the apex cout. For a student of law, this is a reminder of how the Minerva Mills case came to be adjudicated in 1980 after the landmark Kesavananda Bharathi judgment of 1973.
While Kesavananda Bharathi (adjudicated by a 13-judge Constitutional bench) and Puttaswamy (adjudicated by a 9-judge Constitutional bench) laid down the law, its application fell for consideration before smaller benches, in different fact situations. There can be no law devoid of facts and if the law declared by Supreme Court is not applied to the fact situation, it becomes mere rhetoric having no practical effect. This is what the Supreme Court avoided in its Pegasus order, as was done in Minerva Mills, four decades ago.
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Order written in simple, concise manner
This 43-page order is shorter than some of the other recent judgments from the Supreme Court. The language is plain and simple, unlike most other verdicts wherein long paragraphs are lifted from previous judgments and implanted as it is, without even paraphrasing it.
The best part is that an ordinary person, without having any formal training in law, can easily read and understand the order, including the history of events, the reason for various adjournments in Court, the bona fide or lack thereof on the part of the union government in refusing to file a detailed reply in Court, the agony expressed by the Court regarding the possible infringement of privacy of citizens, and the reason why it was forced to appoint a committee of its own by declining the request of the government to have a committee constituted by the government probe the matter.
Also read: Is it the Last Flight for Pegasus? [Part-I]
Fine balance kept in mind
Even while recording such prima facie observations in its order, the Supreme Court has been mindful of the fine balance between different organs of the State, as well as between the right to privacy of citizens on the one hand, and national security on the other.
The Court starts its order with these lines from British novelist George Orwell’s famous lines in 1984: “If you want to keep a secret, you must also hide it from yourself”. The order also quotes these lines of former British Prime Minister William Pitt the Elder: “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter”.
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After referring to various judgments, especially Puttaswamy, the court notes that infringement upon the right to privacy of an individual by the State’s surveillance mechanism can be carried out only when it is absolutely necessary for protecting national security/interest and is proportional. Lawyers are aware that ‘proportionality’ is the yardstick by which administrative actions are reviewed and judged in courts of law.
On the issue of its relation to the other organs of the State, the judgment starts with reference to an “effort by Court to uphold the constitutional aspirations and rule of law, without allowing ourselves (judges) to be consumed in the political rhetoric”.
Also read: Is it the last flight for Pegasus? [Part–II]
Questions placed before Committee of Experts
The Court has been true to this commitment, when it finally directed the constitution of a committee of experts headed by a retired Supreme Court Judge of impeccable integrity and referred to it certain vital ‘Terms of Reference’ which are as follows:
(i) Whether the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated herein?
(ii) The details of the victims and/or persons affected by such a spyware attack.
(iii) What steps/actions have been taken by the Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware.
(iv) 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?
(v) If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made?
(vi) If any domestic entity/person has used the spyware on the citizens of this country, then is such a use authorised?
(vii) Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate
These are the kind of questions which the people in a democracy are entitled to know answer to, and the political representatives are answerable for, both in and outside Parliament.
Indian National Congress Parliamentarian Shashi Tharoor has written that he welcomes the order, despite heading the Parliamentary Standing Committee on Information Technology. According to Tharoor, the government avoided discussion on Pegasus in Parliament and scuttled attempts to discuss the issue even by his Parliamentary Standing Committee by dropping out all the key officials from the Ministry who were scheduled to testify before the Committee.
Also read: Pegasus Snooping Victim Explains Why Users No Longer Believe WhatsApp and Mobile Phones Are Secure
These are the reasons why this order from the Supreme Court must to be welcomed by all those citizens who cherish their freedoms and want to protect their privacy. Freedom is guaranteed under the Constitution but we, the citizens, along with the media and civil society, need to relentlessly fight to protect it.
(Prashant Padmanabhan is an advocate at the Supreme Court. The views expressed are personal.)