“If you want to keep a secret, you have to hide it from yourself.”
A three-judge Supreme Court bench headed by Chief Justice NV Ramana, in its October 27 order on the Pegasus spyware controversy, quoted this line from George Orwell’s original novel 1984. The court took exception to the government’s refusal to file a detailed response to the allegations made by the petitioners in the case and said it “should not take an adverse position when the fundamental rights of citizens are at risk”.
Recognizing that the scope of judicial review is limited in matters relating to national security, the three-judge bench categorically observed that the state cannot obtain a ‘free pass’ by raising the ghost of ‘national security’. The court also appointed a three-member expert committee to probe the alleged involvement of the central government in the controversial use of spyware to spy on its citizens.
The three-judge bench categorically observed that the state cannot obtain a ‘free pass’ by raising the specter of ‘national security’.
Clarifying the legitimate limits of privacy on grounds of national security, the court order argues that the government can only deny information relating to national security if the state has specific immunity under a specific law, but it cannot be ‘in court’. It must be proved and justified. Affidavit’. The court also defended its intervention: ‘Merely invoking national security by the state does not make the court a mute spectator’.
At a time when CJI Raman said that “there is a lot of talk about executive pressure”, the court action has been celebrated by many as a vigorous re-evaluation of the role of the judiciary as the custodian of civil rights. The court’s order broadly addresses three issues that have been at the center of national discourse in recent times—the right to civil (fundamental) privacy; judicial review when the executive invokes ‘national security’; and the effects of surveillance on free speech and a free press.
Many legal experts have termed it as a turning point in India’s constitutional history as the judiciary addresses the holy cow of national security for the first time. Supreme Court lawyer and cyber law expert Pawan Duggal says, “Earlier, it was enough for the government to simply invoke ‘national security’ to prevent the court from investigating the issues involved. Since there is no focus on cyber security in India. While there is no dedicated legislation, this decision sheds light on the way forward as to how the judiciary will deal with issues related to national security.”
The Supreme Court order comes in response to cases filed by several journalists, Editors Guild of India, democracy activists and a Rajya Sabha MP who allegedly fell victim to the spyware Pegasus—produced by Israeli cybertech firm NSO Group—to hack is used for. A target’s smartphone. The Pegasus controversy began on 18 July when it was revealed that around 50,000 smartphone devices worldwide, including those owned/used by Indian Union ministers, politicians, activists, businessmen and journalists, were on the list of potential targets of spyware. . Some of these, it was revealed through forensic tests, were not only targeted but were actually compromised. The NSO group claimed that its hacking software was sold exclusively to government customers for legitimate investigation of serious crimes, with the petitioners seeking a judicial inquiry into whether the central government had been involved in spying on its citizens. Pegasus was used.
Several countries, including France, Israel and Morocco, ordered investigations after the controversy began, but in India, the BJP-led central government is evasive. It has rejected persistent demands of opposition parties for an inquiry and debate in Parliament. Government representatives, including BJP leaders, have alleged that the controversy was, among other things, “constructed” to derail India’s “growth path”.
In the Supreme Court, the Center filed a “limited affidavit” in which it neither confirmed nor denied the use of spyware. It claimed that the allegations were based on conjecture and baseless media reports and any discussion on the subject would be against national interest. It then offered to set up an expert committee to “dispel any false narrative”. BJP leaders now claim that the court order is in line with the government’s proposal to set up an inquiry committee.
Rejecting the government’s affidavit as an “ubiquitous and vague denial”, the top court rejected the government’s proposal for an expert committee and set up a committee of its own. The court-appointed panel includes Naveen Kumar Choudhary, dean of the National University of Forensic Sciences, Gandhinagar; Professor Charhan P. at Amrita Vishwa Vidyapeetham in Kerala. and Ashwin Anil Gumaste, Associate Professor at the Indian Institute of Technology, Mumbai; He will be supervised by former Supreme Court judge RV Raveendran, assisted by former head of Research and Analysis Wing Alok Joshi and cyber security expert Sandeep Oberoi.
TeaThe court asked the committee to examine whether the Government of India or any of its agencies had deployed Pegasus to spy on citizens and whether it was done in accordance with lawful procedure, rules and guidelines. The committee is also expected to suggest laws as well as a mechanism to prevent incidents of unauthorized surveillance, and advise the court on setting up an independent agency to investigate cyber security threats.
Describing privacy as a ‘sacred place’ for ‘a civilized democratic society’, the Supreme Court order upheld its 2017 judgment recognizing the right to privacy as a fundamental right. Any surveillance by the state or any external agency is an infringement of the individual’s right to privacy. While surveillance is a legitimate tool in the hands of governments, the court observed that it can be used only within prescribed parameters and procedures established by law. The judges said the chilling effect of indiscriminate espionage is an attack on the press’s vital role as a public watchdog and could undermine its ability to provide accurate and reliable information.
While opposition leaders have praised the order, some critics have objected. Alok Prasanna Kumar, Senior Resident Fellow, Vidhi Center for Legal Policy, termed the decision as “puff designed to spread rumors and create headlines on social media”. Others think the court could have done better. Suhrith Parthasarathy, a lawyer in the Madras High Court, wrote: ‘Faced with the refusal to file a proper affidavit by the Government to confirm or deny the use of Pegasus, the court would have thought, compelled to issue a writ Will happen. State to produce evidence. Instead, it left the fact-finding to a committee of experts. There is no guarantee that the government which has decided to remain silent before the court will somehow come clean before an outside panel.
Despite doubts about how far the inquiry panel can reach in ascertaining the facts of alleged surveillance, its formation is seen as an acknowledgment that Indian laws governing surveillance need to be reviewed. “What is more important is that the committee will also review the existing legal framework to protect privacy and data protection breaches, and suggest interim legal measures to protect citizens’ right to privacy until comprehensive legislation is passed. The Supreme Court may consider these in its final decision later,” says Salman Waris, IT law expert and managing partner of law firm Techlegis. However, its success will depend on its independence, rights and access to information that can only be obtained from the government. One can only hope.
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