SC Pegasus order reinforces India’s privacy commitment
The Supreme Court’s order on Wednesday on the controversial Pegasus case—appointing an independent probe committee under a retired apex court judge—is a remarkable piece of jurisprudence that could restore the balance of powers between the judiciary and the executive. The panel’s mandate is explosive enough: to inquire whether the government conducted illegal surveillance of the mobile phone devices of top journalists (among others) using the Pegasus software of Israeli spyware maker NSO Group. But with its reasoning, the SC bench headed by Chief Justice N V Ramana draws some lines in the sand that have future value. The rather well-written order, quoting Orwell and the Earl of Chatham, explains the court had to perforce act because of the government’s “vague”, “omnibus”, “non-committal” and “non-serious” refutations that contained no “specific denial”. Its jurisdictional rationale is that the court is duty-bound to uphold the “constitutional” aspiration of the citizenry to be protected from “abuses of fundamental rights” without being consumed by political rhetoric.
The order reinforces India’s commitment to privacy, a concept less than explicitly defined in the Constitution but enshrined as a fundamental right in a landmark 2017 SC judgment. This order speaks of privacy as a “sacred space” central to “a civilised democratic society”. The other principle at stake—freedom of speech—is of course fundamental to our constitutional ethos, and the order warns against the potential “chilling effect” of digital espionage by the government on an independent press. Most pertinently, the court emphasised that the government cannot hide behind vague threats to “national security” every time. “National security cannot be a bugbear the judiciary shies away from, by virtue of its mere mentioning,” it said. Words strong in spirit that should set a virtuous precedent. Hopefully, the curtain over the Pegasus secret too will be lifted. In India, committees have not been known to show exemplary results. But there can always be a departure from the usual.