Recently, the Supreme Court passed an order constituting an expert committee to probe into the allegations on the use of Pegasus spyware. The accusation that the government has, in collaboration with a foreign company, snooped on its own people and institutions is serious. As the court indicated in its order on October 27, the constitutional and democratic concerns involved in the issue cannot be lost in the political thicket. Allegedly, about 50,000 devices were snooped all over the world. Persons working across various fields were named as victims of the surveillance.
After the Puttaswamy verdict (2017), privacy rights were asserted before the Supreme Court in many cases. But in the instant case of Manohar Lal Sharma v. Union of India, the right to privacy is manifested in multiple forms in the personal and public lives of the citizens. The very legitimacy of a regime that harshly used nationalism and patriotism to incarcerate the citizens is now clearly under a judicial scanner. At a time when the opposition in the country faces an existential dilemma, the court, with all its limits, asked certain inconvenient and tough questions.
The Orwellian concerns expressed in the court order go far beyond political parties and national boundaries. Illegal surveillance strikes at the root of the right to privacy. International targeted surveillance with a political agenda, to fulfil the interests of the market forces or of those who run the electoral autocracies, poses a civilisational threat to humankind. French philosopher Michel Foucault has explained the fundamental nexus between dictatorial power, surveillance and social control. In his memoir Permanent Record (2019), Edward Snowden talks about “surveillance capitalism” and the relevance of an “international opposition movement”. He also indicates the contradiction of the law being “country-specific, whereas technology is not”. Therefore, it is essential to equip the laws to address the global and technical challenges involved in the Pegasus issue.
Before the Supreme Court, the government did not specifically answer a short and straightforward question: whether it used Pegasus for surveillance. According to the provisions in the Civil Procedure Code, failure, or refusal to clearly answer the “point of substance” can invite adverse findings and consequences. In constitutional litigations, the government has a duty to reveal all the facts and information in its possession to the court, as stated in Ram Jethmalani v. Union of India (2011) and reiterated in the present order of the court. More than a matter of law, this reflects an approach of prudence and common sense. The regime’s silence on the point is noteworthy. It aggravated the apprehensions about selective surveillance with a specific hidden agenda.
The Public Interest Litigation (PIL) movement that gained momentum after the Emergency suffered a setback in recent times due to multiple reasons. Lack of seriousness and procedural certainty, coupled with abuse of the jurisdiction, resulted in trivialisation of the device. Anuj Bhuwania has elaborated on the qualitative deterioration that the institution of PIL faced in India in his seminal work, Courting the People (2017). The order in the Pegasus case gives hope for the re-emergence of genuine and serious social action litigations.
The court order has an instructive and intrinsic value as well. Sometimes, constitutional courts can act as great public educators, though their primary function is different. The order says that in an ambience of surveillance, the press or the people cannot be free. The court traced the quintessential relation between freedom of expression and freedom from surveillance. In the words of the court, “the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights” and “such a scenario might result in self-censorship”. Indisputably, surveillance is policing thoughts, dreams and imagination of the individuals and their collectives. It annihilates the freedom of the press in tremendous ways. It intimidates even the source of information, the foundation of the fourth estate. It is an egregious trespass into the forbidden zones. The order is valuable for its authoritative emphasis on “protection of journalistic sources”.
The challenges before the committee are enormous. If the government continues to take a stubborn attitude, as it took before the court, or does not cooperate in the steps ahead, timely and effective judicial interventions may be needed. The device called ‘continuing mandamus’, where the court constantly oversees the progress of the activities or lack of it, and issues directives from time to time, may turn out to be a processual imperative.
We need an effective mechanism to ensure cybersecurity for the nation. In the event of unauthorised intrusions, access to quick legal remedies should be guaranteed. Planting spyware in the targeted devices and email accounts is an aggravated form of surveillance that warrants severe punishment.
But at the end of the day, the Pegasus litigation calls not only for judicial vigilance but alertness of the civil society at large. Digital surveillance has the potential to turn democracies upside down. As such, no one can live with a false notion of individual security. As writer Thor Benson reminds us: “Don’t oppose mass surveillance for your own sake. Oppose it for the activists, lawyers, journalists and all of the other people our liberty relies on.”
Kaleeswaram Raj, Lawyer, Supreme Court of India (kaleeswaramraj@gmail.com) (Tweets @KaleeswaramR)