In a major development in the Pegasus case pending in the Supreme Court, the Chief Justice of India NV Ramana has indicated that a committee of technical experts was being set up to assess allegations of illegal surveillance. The Court made it clear that its own scope of review would not extend to matters of national security or defence. Rather, the Court clarified that the Committee would restrict itself only to allegations of illegal surveillance upon citizens.
In my opinion, as a criminal lawyer, the Court’s approach has been rational and measured. At first blush, the clutch of public interest litigations, which have been filed ostensibly by ‘concerned citizens’, do appear to raise questions of constitutional importance—the kind that the apex court would be correct to examine under its Article 32 jurisdiction. The petitioners have argued that the government used surveillance tools illegally against citizens. Interestingly, not one out of the several petitioners has filed a complaint. Even they admit that their case rests solely upon unverified foreign-media reports. To make matters worse, the Israeli Government and the company in the eye of the storm, Pegasus, have both denied that the tracking software was deployed illegally.
In a nutshell, the Congress-affiliated lawyers who represented the petitioners argued that the use of surveillance software violated Sections 43 & 66 of the Information Technology Act, 2000 and thus by extension, the fundamental right to life guaranteed under Article 21 of the Constitution was violated. This argument is totally disingenuous and wrong, in my opinion, for two reasons. First, the very act of surveillance, in all its myriad technological avatars and variations, is regulated exclusively by the Telegraph Act, 1885 and no other statute.
The provisions of the Telegraph Act permit the use of phone-borne software by the State to monitor targets, provided it is in the interest of public safety or for the detection of crime. Second, in the landmark 1995 PUCL Supreme Court judgment, the constitutionality of phone-tapping had arisen, and the Court concluded that it was indeed in national interest to permit the interception of certain communication—which, ironically, was the stance argued by Kapil Sibal, the lawyer leading the petitioners in the Pegasus cases!
Given this background, the Supreme Court correctly resisted the urge to overreach. Their decision to constitute a committee of subject-matter experts to analyse the actual deployment of surveillance, rather than demanding affidavits from the government which might jeopardise national security, strikes the perfect balance between the need to protect individual liberty and adhere to the trias politica model of separation of powers.
Besides, even critics of the government would agree that there is absolutely no reason to doubt the intentions of the Court or the soon-to-be constituted Committee. Unlike his predecessors, the new Chief Justice has assiduously kept himself away from politics and controversy, and has demonstrated a preference to stay neutral in matters concerning the government, which is a trait his predecessors seemed to struggle with.
jai@dehadrai.in