Subject: Polity

Context

When the bench of the Chief Justice of India passed an order appointing a committee in the Pegasus matter, it served the interest of every Indian.

What led to the appointment of committee by the Supreme Court

• Pegasus has allegedly been used against politicians and individuals across the globe, including against politicians, journalists and other private individuals in India.
• The issue rocked Parliament, but the government was not willing to share any information pertaining to the software or its use, citing national security as a reason.
• The alleged victims of the software turned to the Supreme Court, and prayed for setting up of an independent enquiry.
• The government, on being called upon by the Supreme Court, cited national security, contending that any information it let out would become a matter of public debate, which could be used by terror groups to hamper national security.
• Its unrelenting stand left the court with no option but to take a call on whether to blindly accept the government’s refusal to share no information whatsoever, or lean in favour of a citizen’s right to privacy, a fundamental right guaranteed under the Constitution.
• The Supreme Court chose the latter course.

Balancing the fundamental rights  nad judicial review with national security

• The Supreme Court has observed that “the state cannot get a free pass every time the spectre of national security is raised”.
• It goes on to say that national security “cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review”.

Conclusion

The Pegasus order upholding the individual’s right to a life of dignity and privacy, is music to the ears of those who believe in constitutional values and rule of law.
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Context

The Supreme Court of India appointed an independent committee to inquire into charges that the Union government had used the mobile phone spyware Pegasus to invade, access, and snoop into devices used by India’s citizens.

Background

• The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media.
• These reports revealed that hundreds of phone numbers from India had appeared on a global list of more than 50,000 numbers that were selected for surveillance by clients of the Israeli firm, the NSO Group.
• The NSO has since confirmed that its spyware is sold only to governments, chiefly for the purposes of fighting terrorism.

Government’s defence

• In response to the allegations made against it, the Government invoked national security.
• What is more, according to it, the very adoption of this argument virtually forbade the Court from probing further.
• In matters purportedly involving national security, the Court has shown an extraordinary level of deference to the executive.
• The cases also posed another hurdle: a contest over facts.
• The petitioners were asserting the occurrence of illegal surveillance.
• The Government was offering no explicit response to their claims.
• Now, to some degree, in its order appointing a committee, the Court has bucked the trend of absolute deference.
• The Court has held that there is no magic formula to the 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.

Accountability on part of the government

• The order recognises, correctly, that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy.
• This is not to suggest that all surveillance is illegal.
• In holding thus, the Court has effectively recognised that an act of surveillance must be tested on four grounds:
• First, the action must be supported by legislation.
• Second, the state must show the Court that the restriction made is aimed at a legitimate governmental end.
• Third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective;
• Finally, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.
• The test provides a clear path to holding the Government accountable.

Way forward

• The absence of a categorical denial from the Government, the order holds, ought to lead to a prima facie belief, if nothing else, that there is truth in the petitioners’ claims.
•  Having held thus, one might have expected the Court to frame a set of specific questions demanding answers from the state.
• If answers to these questions were still not forthcoming, elementary principles of evidence law allow the Court to draw what is known as an “adverse inference”. 
• A party that fails to answer questions put to it will only risk the Court drawing a conclusion of fact against it.
• If, on this basis, the petitioners’ case is taken as true, there can be little doubt that there has been an illegitimate violation of a fundamental right.
• It is, therefore, unclear why we need a committee at all.
• Ultimately, in the future, the Court must think more carefully about questions of proof and rules of evidence.

Conclusion

Ad hoc committees — sterling as their members might be — cannot be the solution. Far too many cases are consigned to the back burner on the appointment of external panels, and, in the process, civil liberties are compromised.

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Context

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

Terms of reference

• 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.

Significance of the committee on Pegasus issue

1) Transparency and disclosure

• 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.
• The only filing made in court by the government 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.

2) The SC’s approach towards national security

• The second reason is the Supreme Court’s firm approach towards the national security submissions by the Union government.
• 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.”
• 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 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.

3)  Rejection of the suggestion by the Solicitor-General to constitute a government committee of experts

• The court correctly notes that even though the Pegasus revelations were first made on November 1, 2019, 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.

Challenges

• 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.

Conclusion

Hence, the constitution of this committee provides hope. At the same time, any honest assessment should consider the more challenging tasks ahead.

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