The Court’s Order On Pegasus Still Falls Short

Context: Supreme Court of India appointed an independent committee to inquire into charges that the Union government had used Pegasus spyware to invade, access, and snoop into devices used by Indian citizens.

Key points from the court’s order

• Upheld need for transparency even in matters of national security: Even in case Government invokes national security, court’s power of judicial review is not denuded.
• Privacy and legality of surveillance: Spying on an individual, whether by state or by an outside agency, amounts to infraction of privacy, though not all surveillance is illegal.
• Checks and balances on infringement on fundamental rights: Any limitation on a fundamental right must be proportional and based on evidence.
  • “In a democratic country governed by rule of law,”, “indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards and, by following procedure established by law under the Constitution.”
• Act of surveillance must be tested on four grounds:
  • Action must be supported by legislation.
  • State must show Court that the restriction made is aimed at a legitimate governmental end.
  • State must demonstrate that there are no less intrusive means available to achieve the same objective.
  • State must establish that there is a rational nexus between limitations imposed and the aims underlying the measure.

Limitations of the judicial intervention

• No guarantee that a government that remains silent before the Court will come clean before an external panel: As Government refused to file a proper affidavit, either confirming or denying use of Pegasus.
  • No accountability on part of government: In Pegasus cases petitioners affirmed a set of facts, claiming that mobile phones of Indian citizens had been subject to intrusion, but Government refused to file anything more than what it described as a “limited affidavit”.
  • Partial action: Instead of issuing a writ compelling state to adduce evidence, court left fact-finding to a committee of experts.
  • Lack of clarity: As what should be the response of court in case government failed to cooperate.
• Extraordinary level of deference to the executive in matters of national security. The very adoption of the national security argument virtually forbade the Court/Committee from probing further.
  • Court has bucked the trend of absolute deference: Court has held that there is no magic formula to Government’s incantation of national security, that its power of judicial review is not denuded merely because the state asserts that the country’s safety is at stake.
• Absolute deference of Courts in recent times in case of claims made against state on basis that it cannot decide veracity of a pleading without conducting a full-fledged trial, the conduct of which is beyond the bailiwick of constitutional courts.
• Compromised civil liberties: As Ad hoc committees cannot be the solution. Far too many cases are consigned to the back burner on the appointment of external panels.

Way forward

• Clarity on accountability measures: Court should frame a set of specific questions demanding answers from the state like
  • Did the Government purchase Pegasus?
  • Did it use the software on the phones of Indian citizens? If so, was such use backed by law?
  • What were the reasons for which the use was authorised?
• Court should draw “adverse inference” principles of evidence law in case above questions were not answered by drawing a conclusion of fact against it. Court can grant number of remedies like
  • Court can make a declaration that the Government was in the wrong.
  • Court can issue a writ compelling the Government to disclose all materials relevant to the purchase and use of Pegasus.
• In case Government delays or obstructs the committee, court must proceed to use its prerogative powers to both provide a declaration of illegality and issue a mandatory order to the state, compelling it to perform its constitutional duties.