Dr John Mohan Razu
The functioning of 2021 monsoon session of both houses of Parliament the Lok Sabha and Rajya Sabha witnessed disruption over Pegasus. Vociferous protests, sloganeering, display of placards and tearing of the papers by the opposition parties continued relentlessly.There has been intense and persistent ruckus by the opposition political parties in both the houses of parliament that irked the ruling party, but never relented, with a hope that it may die down in course of time. On the contrary, the protests garnered momentum.
The treasury bench thought that the pandemonium would settle down in course to time, but the opposition somehow in unison sustained the momentum which prompted the Prime Minister Narender Modi asked the BJP’s Members of Parliament (MPs) to expose the opposition parties disrupting the proceedings in both Houses of Parliament over Pegasus spyware issue saying that “The Government of India (GOI) is ready, but opposition is not.”
PM Modi thought that he could capitalize on this issue or somehow manage like others.But, this time, the opposition was firm in its stance demanding the GOI to initiate the Supreme Court (SCI) monitored probe into the issue. The GOI brushed aside the demand of the opposition. In the meantime, the noted personalities across the spectrum especially in the media, activists and politicians whose phones have been hacked by a spyware Pegasus filed their petitions in the Supreme Court of India (SCI).
The Supreme Court on Wednesday (27th October, 2021) directed a probe into the Pegasus snooping controversy by a three-member expert committee under the supervision of former SC judge R.V. Raveendran, holding that a “prima facie case” is made out for an investigation in the light of Centre’s “omnibus and vague denials” of the alleged surveillance and the need to uncover the truth of the accusations. A bench of Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli also brushed aside the contention of the government that it should not interfere in the issue as national security is involved.
The SCI in its response said though the Centre (GOI) may decline to provide information when constitutional considerations exist, such as those pertaining to the country’s security, this did not mean “… the State gets a free pass every time the spectre of “national security is raised.” CJI Ramana while pronouncing judgement after having penned it, said, “… However … national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning … The mere invocation of national security by the State does not render the court a mute spectator.”
SCI particularly highlighted the “chilling effect” of surveillance on the freedom of the press and allowed the plea of petitioners, some of whom are journalists, and the Editors Guild of India, who had claimed that they have been snooped. Adding further, “Surveillance is an assault on the functioning of the media and a hindrance to the discharge of its duty as the society’s watchdog” and so “Protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources ma be deterred from assisting the press in informing the public on matters of public interest.”
SCI was particular emphasized to know the truth whether the alleged spyware was used to snoop on several groups of citizens, including activists, politicians, scribes and also members of the judiciary or not. The Court observed that it would have a chilling impact and so there is need to get to the truth to uphold the fundamental rights of people, which include the right to privacy. Rejecting GOI’s plea of setting a technical committee to examine allegations said that the claims of the government using spyware to snoop on citizens needed an independent and impartial panel as “justice must not only be done, but also be seen to be done”.
The Terms of Reference (TOR) given to the panel is wide-ranging and comprehensive. The court reiterated that although declared to be inalienable, the right to privacy of course cannot be said to be an absolute, as the Indian Constitution does not provide for such a right without reasonable restrictions. Substantiating further, “As with all the other fundamental rights, this court therefore must recognize that certain limitations exist when it comes to the right to privacy as well. However, any restrictions imposed must necessarily pass constructional scrutiny.”
SCI made a scathing attack by pointing that the right to is “directly infringed” when there is surveillance or spying done by the State and if done by the State, it must be justified on constitutional grounds. “This Court is cognizant of the State’s interest to ensure that life and liberty is preserved and must balance the same. To access this information, a need may arise to interfere with the right to privacy of an individual, provided it carried out only what it is absolutely necessary for protecting national security/interest and is proportional.
In the guise of national security, the GOI went ahead doing several things, but in this case the apex court observed that “… despite the repeated assurances and opportunities given, ultimately the Union of India has placed on record what they call a limited affidavit which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand. If the Centre had made their stand clear it would have been a different situation, and the burden on us would have been different.”
SCI gave the Centre enough time to explain ‘national security’ and ‘confidentiality’. Since the Centre had failed to explain in detail the apex court came out candidly ‘enough is enough’ by reiterating that “In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution.” The State should not assume absolute power and authority. A clear reminder that the Constitution is supreme and absolute.
The judgement by the Supreme Court of India is indeed historic at a time when the country is reeling under several draconian laws especially those who are involved in investigative journalism and reporting. The State in the name of ‘national safety and security’ could resort to several things, and one such thing is Pegasus, but the judgement exposed and directed the State that it is answerable to such actions that intrude into individual privacy and freedom. In the judgement it came out clearly that indiscriminate spying on those who oppose, question and critique is antithetical to democracy. However, the State can go to any extent of snooping individuals, but we have a judiciary, rule of law and the Constitution.
