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Backstory: Make Pegasus Inquiry a Public Inquiry – For Our Rights, Liberties and Media Freedoms

A fortnightly column from The Wire's ombudsperson.

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On October 27, the Supreme Court ruled in Manohar Lal Sharma vs Union of India that an expert committee be set up to inquire into whether the Pegasus spyware was used to access the data of Indian citizens and whether it was acquired by the Government of India or any central/state agency for use against the citizen, among other important terms of reference. While many viewed this as a breakthrough moment in Indian jurisprudence, others were more skeptical, arguing that the court had not gone far enough in making it mandatory for the Modi government to comply with directions issued by such a committee in both letter and spirit.

For journalists, however, the ruling held three vital points of significance. First, the apex court recognised that privacy was one of the requirements for the full flourishing of the media and that surveillance and the knowledge that one is under the threat of being spied upon creates conditions for self-censorship and would constitute an “assault on the vital public-watchdog role of press”. Second, it underlined an “important and necessary corollary of such a right” – the need for the media to protect its sources of information in order to function optimally. Finally, it reiterated the importance of an independent and professionally run media for a democratic society, and saw this as yet another argument for why the Pegasus issue needed to be investigated by a credible committee.

As the Court observed:

“Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that snooping techniques may have, this Court’s task in the present matter, where certain grave allegations of infringement of the rights of the citizens of the country have been raised, assumes great significance. In this light the Court is compelled to take up the cause to determine the truth and get to the bottom of the allegations made herein.”

Since the media has, ever since Narendra Modi became prime minister, been more than willing not just to give the government a long rope but surrender themselves to be tied up by that very rope, these observations of the Supreme Court did not attract the media’s attention as they should have. There was also insufficient reportage on the extraordinary stratagems adopted by the Modi government in order to escape accountability over charges of having used a spyware condemned by the entire world, the most recent being the US (‘US Puts Pegasus Spyware Maker NSO Group on Trade Blacklist for ‘Malicious Cyber Activities’’, November 3).

The meticulous way in which the Supreme Court documented these attempts in the recent order makes for mind-boggling reading. On August 10, copies of the petitions were served on the Solicitor General, who took an adjournment to get instructions from his client, the Union of India. On August 16, the said gentleman placed on record a “limited affidavit” filed by the Additional Secretary, Ministry of Electronics and Information Technology, Union of India, citing lack of time to deal with all the facts and contentions raised. It was also stated that the Union of India “unequivocally” denies “any and all the allegations made”, averring they are based on “conjectures”, “surmises” and “other unsubstantiated media reports or incomplete or uncorroborated material”. Given this, it went on to state that “nothing further needs to be done at the behest of the Petitioner, more particularly when they have not made out a case”. A suggestion was also put forward at this stage by the Solicitor General that the Union of India will constitute a Committee of Experts to go into all aspects of the issue.

On August 17, after the Solicitor General was informed that the “limited affidavit” was insufficient for the Court to come to any conclusion, he stated that he would need more time to file a more detailed affidavit. At that juncture he flagged the old familiar threat of “national security” being put at risk. The Court in its response made it clear that it did not seek such facts as would threaten the country’s national security. The Solicitor General then asked for more time to seek instructions. The matter was listed for September 7, only to meet with a request for an adjournment from the Solicitor General. On September 13, the Solicitor General went back to square one, harking on the detrimental impact on national security from terror groups and reiterated the statement of July 18 made by the minister on the floor of Parliament regarding “the statutory mechanism surrounding surveillance and interception in the country which ensures that unauthorised surveillance does not take place.” He also repeated the offer to constitute an expert committee.

Thanks to the court having carefully listed all these developments in court, the media – if they were at all interested – would have perceived a distinct pattern of deliberate prevarication, delay, reiteration and fear mongering that marked the Union of India’s stand on the Pegasus matter. It also suggests that this could well be its strategy in the future as well. If the Supreme Court, with all its powers, could not get the Union of India to budge a millimetre on the matter, it seems highly unlikely that a Court-appointed Committee would do better.

We are left then with the abnormal situation of the Union of India sitting tight on information that is of vital importance to the public of India: did the Modi government, or its agencies, use the Pegasus spyware against citizens? Perhaps the only way out of this conundrum is for the Justice R. V. Raveendran Committee to borrow a leaf from the book of that grand old jurist, M.C. Chagla, who was chief justice of the Bombay High Court for a decade from 1948. He was appointed to probe India’s first major financial scandal, the Mundhra scam which broke in 1957,  and was brought to national attention by Feroze Gandhi, a parliamentarian, journalist and the son-in-law of India’s first prime minister, Jawaharlal Nehru. What lent the scam sustained national attention was Justice Chagla’s decision to make the inquiry proceedings public. Loud speakers were installed near a window of the hall in which the inquiry was being conducted so that those outside could follow the discussion.

This intervention by Justice Chagla was driven by the idea that ordinary people have a stake in issues of financial impropriety at the highest levels of their government although they may not be familiar with the nuances of the case.  There may have been many within the power elite of his day who maintained that the Mundhra scam is a matter of little consequence for the ordinary person; that the untutored public would not be able to follow the complicated aspects of high finance. But a jurist like Chagla found such an argument beneath contempt. He saw the public conduct of the proceedings of his Commission as an exercise in democracy, educating people while at the same time making the wielders of power realise that their actions could be subjected to public scrutiny. The large crowds that turned up to hear the proceedings more than proved him right.

Today, those who argue that the issues raised by Pegasus are too arcane for the ordinary Indian to grasp are making the same mistake. There is a strong argument for making the Pegasus inquiry public, not least because it would reverse the ugly legacy of the sealed cover that an earlier Supreme Court Chief Justice, Ranjan Gogoi, had made into a fine art. Allow the public to participate in the Justice Raveendran Committee Inquiry, and perhaps the Union of India will be forced to reconsider its intransigence on the matter. In the process, all Indians will get a chance to understand a little more how violations of people’s privacy have dangerous implications for their lives, rights and media freedoms.

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Targeting the Fourth Pillar

To arrive at a holistic way to assess the assault on the Indian media, the Polis Project began to document violence against journalists in this country as an ongoing project. It recently came out with a report of 256 reported instances of assaults on journalists and journalism in India, which took place from May 2019 to August 2021. The worst situation is certainly what prevails in Kashmir, where reporters function literally from behind a barbed wire fence. Journalists have had to face physical assaults mounted by the army and J&K police and experience long spells in prison.

The anti-CAA protests saw a spike in such violence, with journalists who covered them attracting threats, intimidation, FIRs, and direct physical attacks. The pandemic was a period that saw concerted media repression. Those attempting to file important ground reports on the actual situation prevailing in the country, as against government propaganda that systematically papered over the ground realities, lost their jobs or had police cases lodged against them.

During the northeast Delhi pogrom journalists were identified by their religion and preyed upon by mobs; the farmers’ agitation saw the police arresting journalists for just doing their job and some had FIRs filed against them. Other important aspects that are highlighted in the documentation include the widespread use of Section 124 A of the Code of Criminal Procedure, or the crime of sedition — which could result in a life imprisonment – to intimidate and silence journalists.

What is striking, if unsurprising, is that BJP-ruled states are significantly “more dangerous for journalists than others”.

For the full report go to https://bit.ly/2ZKxXgy

Journalism and climate change

I found the open letter to the global media on a “destabilizing planet” from climate activists, Greta Thunberg and Vanessa Nakate, worth a second read. It came out shortly before the 2021 United Nations Climate Change Conference (COP26) at Glasgow.

They suggest that the media are a valuable resource in the battle against global warming and suggest three markers which should become intrinsic to any journalism that seeks to cover the current crisis with credibility: time, holistic thinking and justice.

“The notion of a ticking clock” needs to be constantly raised. If this aspect is left out, then environmental journalism will inevitably be reduced to business as usual. Readers/viewers need to know that “our current rate of emissions, our remaining carbon budget for staying below 1.5°C, will run out before the end of this decade.”

The second important aspect is holistic thinking.  Big polluters cannot, and should not, be allowed to get away with their actions screened by “incomplete statistics, loopholes and rhetoric”.

The third aspect is justice, something that Thunberg and Nakate consider the most important of all. The climate crisis affects “real people”, with those who are least responsible for creating the crisis in the first place being the ones who suffer its consequences the most. “To include the element of justice, you cannot ignore the Global North’s moral responsibility to move much faster in reducing their emissions…That’s why historic emissions not only count, but are in fact at the very heart of the debate over climate justice. And yet historical emissions are still being almost completely ignored by the media and people in power.”

The responsibility of the media to correct past failures is vital. Thunberg and Nakate observe in conclusion: “We are social animals and if our leaders and our media don’t act as if we were in a crisis then of course we won’t understand that we are…You are among our last hopes. No one else has the possibility and the opportunity to reach as many people in the extremely short timeframe we have. We cannot do this without you.”

Coverage of Miyas in Assam

An Assam based researcher complains that his pieces are not being used by The Wire: The Wire is doing wonderful work and I have great hopes on this platform. I wrote some pieces on Assam for The Wire but none of them got published. Other researchers have complained about this too, especially when it comes to publishing pieces on issues of the Miya Muslims of Assam. A major section of academics in the state do not want such stories to get published. When the infamous Nellie massacre happened, the leading daily of Assam, The Assam Tribune, did not carry any news on it.  Such silences continue even today, not only in Assam, but in platforms outside of Assam.

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Condemnation of violence against Hindus in Bangladesh

O.M.A. Salam, chairman of the Popular Front of India (PFI), New Delhi, sent in this statement: “The news of deaths and destruction coming from our neighbouring country is extremely disturbing and unfortunate. Those who take the law into their hands and target innocents belonging to other communities over some unverified allegations are a threat to any civilised society. Such people must be controlled and made an example out of. The rights and liberties of minorities are inviolable under any circumstances, and it is the yardstick used to judge a functional society marked by the rule of law. Sheikh Hasina’s hinting that the persecution against Muslims in India has a bearing on the attack on Hindus in Bangladesh is unacceptable. While Hasina acknowledges minorities as equal citizens of the country in her latest statement, she must prove it in action and ensure peace and security to Hindu minorities in Bangladesh.

A perfunctory committee

Mail from Rakesh Raman, a journalist and founder of the humanitarian organisation RMN Foundation and editor of The Unrest, a news magazine: “In the latest November 1-15, 2021, issue of The Unrest, I have pointed out that the Supreme Court of India has subtly dumped the Pegasus spyware case by forming a perfunctory committee which will waste more time and its findings are not likely to punish the culprits in the government.

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The Wire cannot digest Modi govt’s success

Sudharshan Chakrabavi writes: “You guys cannot digest any success of the Modi government. The Wire is a government hater and anti-nationalist, along with people like Karan Thapar. Even gods can’t help save you guys. It’s unfortunate that we have people like you who disguise themselves as reporters, journalists and intellectuals but in reality are just a cover for anti-national forces.”

Valley realities

Syed Zaidi writes in:  “The vast majority of Indian Hindus reject anti-minority activities. The piece, ‘In Sectarian Politics, Sauce for the Goose Is Never Sauce for the Gander’ (October 21) is excellent. However, one wonders about the truth of the phrase quoted above is. It would indeed be heartening to know that it is true to the situation prevailing in the valley. Perhaps The Wire can establish that it is indeed the case. Such reportage will be most welcome.”

Bypassing the admission process?

The Wire reader, Nitin Vishen, writes in: “I have come to know that several National Institutes of Technology (NITs) have received a letter from the Ministry of Higher Education to admit a bunch of 75-100 students irrespective of their rank in JEE-Mains. If true, this bypassing of the admission process to our premier institutes can undermine their reputation and credibility. I do not have the resources to investigate and report this. I request you to please look into this, and if you find this information to be true, report it.”

Keep up the good work

A comment from Doris D’Souza and K. Raj: “Thanks for your Ombudsman’s article on (‘Vax-Maximisation and Media Exuberance: The Modi Govt’s Objectives’, October 23). These are shocking yet expected revelations. We look forward to more articles from her.”

 Idiot No 1

Another from Shankar Lall: “The write up on the Modi government’s 100 million vaccines is sheer nonsense (‘Vax-Maximisation and Media Exuberance: The Modi Govt’s Objectives’, October 23). You are an Idiot No 1, who cannot be proud of such a great achievement of the nation.”

Write to publiceditor@thewire.in