The Supreme Court in its order in the Pegasus case has reiterated the importance of privacy in the digital age and constituted a committee headed by retired Supreme Court Justice Raveendran to establish whether the government had purchased the malware Pegasus and whether it was being used to target Indian citizens.
The order itself was welcomed with Senior advocate, Dushyant Dave calling it ‘extraordinary and extremely significant for democracy.’ Senior journalist, M.K. Venu said that the order has the potential to Let India’s democracy breathe again.
Pegasus is a spyware which can be installed on a person’s phone through remote action. The software enables access to all the information on the digital device and can send it to the group or agency which is using Pegasus and doing the spying. This extremely powerful military grade software is manufactured by the Israel based NSO Group and is according to the NSO sold exclusively to governments.
When Amnesty International along with Citizen Lab broke the news of the use of Pegasus to infiltrate over 50,000 phones around the world including a number of Indian phones, the legitimate question was who was spying on Indian citizens? The devices of some of the BK-16 accused were on the list of Indians who were subject to surveillance. Through digital forensic analysis we know that that the computers of Rona Wilson and Surendra Gadling were hacked and files were planted on them, indicating that it is not just surveillance but planting of false evidence which Indians need to fear.
When affected individuals who were victims of this spyware filed a petition before the Supreme Court claiming that their right to privacy was violated by the use of Pegasus, the Union Government refused to file a detailed affidavit either denying the charge that it was spying on Indian citizens or confirming the charge. To repeated questions as to whether it had purchased Pegasus, it said that it was a matter of national security and could not be divulged.
The Supreme Court in its order, objected to the ‘national security’ argument of the Union Government. The Court said that the State does not get ‘a free pass every time the spectre of “national security” is raised’. The Court went on to hold that ‘the mere invocation of national security by the State does not render the Court a mute spectator.’
This reiteration of the law by itself was very important. As the Court noted, privacy is an essential right in a democracy and ‘every citizen of India ought to be protected against violations of privacy.’ It is only when citizens know that their right to privacy is protected that they can exercise their ‘choices, liberties, and freedom.’
However as the Court noted, a citizen’s right to privacy can be restricted by the state if three conditions are satisfied. The restriction of the right to privacy must be authorized by a law, must have a legitimate objective and the restriction must be a proportionate response.
If one applies this three fold test, the installation of Pegasus is not only not authorized by law, but is against the provisions of the Information Technology Act which prohibits hacking of devices and tampering with one’s information. The Government will find it difficult to establish that the phones of politicians, activists, students and journalists were hacked because of a national security concern. Finally the Government will find it difficult to show that the Orwellian surveillance of individuals is in any way a proportionate response.
All of these factors must have led the government to decide not to file a detailed affidavit as requested by the Court and instead brazen it out using the language of ‘national security’. Luckily the Court has called the bluff of the Union Government.
The final escape route which the Union government had planned for itself was to propose before the Court that the issue would be inquired into by a Committee which it would constitute. The Court rebutted this suggestion saying that if the inquiry was to done by a government constituted committee it would ‘violate the settled judicial principle against bias’ and that ‘justice must not only be done, but also be seen to be done’.
The Court went ahead and constituted a Committee headed by a judge known for his independence and integrity, Justice Raveendran to be assisted by an IPS officer, Alok Joshi and Sundeep Oberoi a cyber security expert. The Committee would be assisted by a technical committee. Further Justice Raveendran was given the freedom to take the assistance of legal experts, technical experts as well as serving officers.
The Court constituted committee has the powers and the mandate to establish the truth behind who is using Pegasus and for what purposes. If the Government decides to stonewall the inquiry, the Committee can draw adverse inferences and proceed to draw its own conclusions. Further the Committee can utilize the information provided by other experts, making it possible to the bottom of the Pegasus scandal regardless of the governments position.
As such, we have before us the genuine possibility that the crimes of illegal surveillance and planting of evidence will be exposed and accountability can be demanded of the government. It is important that civil society engages with the Committee to enable it to unearth the truth behind the use of Pegasus as a tool to undermine Indian democracy itself.