In India, the Use of Pegasus Tells Us the Line Between State and Party Has Blurred

In an ordinary course, it would be unremarkable that the Supreme Court’s judgment in the Puttaswamy case holding privacy as a fundamental right under the constitution of India was delivered just weeks after the first visit of an Indian prime minister to Israel in July 2017. In the wake of the Project Pegasus investigations, the timing is striking.

It’s reasonably speculated that it was on that trip that the Indian state formally signed up for the infamous Pegasus malware that it has reportedly used for surveillance against journalists, opposition leaders and constitutional functionaries. An agency under the command of NSA Ajit Doval – National Security Council Secretariat – received a staggering and mysterious 311% budget increase in that financial year, lending heft to the conjecture that the funds may have been used for Pegasus.

The government’s response has so far oscillated between denial, obfuscation and an accidental admission. Three petitions have so far been filed in the Supreme Court of India in respect of the matter, and the matter is listed for August 5. If the allegations are proven, not only would it be a state-sponsored crime, but the executive would be in egregious contempt of the nine judges of the apex court who delivered the landmark judgment.

A weakened legal framework

India does not have a comprehensive legal framework to prevent abuse of individual privacy. In response to the Puttaswamy judgment, the government-appointed committee of experts chaired by Justice B.N. Srikrishna (retd.) proposed the enactment of the Personal Data Protection Bill, 2018. For three years, the Bill has been travelling between joint committees and as late as July 22, 2021 a new chairperson was appointed in the Lok Sabha and the committee was granted another extension until December 2021.

The Bill as it currently stands (Chapter VIII) provides exemptions to the state for the processing of sensitive personal data if it is in the interest of the security of the state. It proposes that any such exemption must be proportionate and narrowly tailored to the stated purpose, which is the interest of the security of the state. The Justice Srikrishna committee had also called upon the government to expeditiously bring in a law for the oversight of intelligence gathering activities; a demand that Manish Tewari, a Congress MP has recently repeated and a former R&AW official, Vappala Balachandaran, has endorsed in these columns.

The principle that the state should have exemptions of such nature is a concept imported from the United States, where it is known as ‘compelling state interest’. For such “state interest” to be operationalised by the executive, the law must be narrowly framed to achieve the objective (known as “narrow tailoring” in the US).  However, Chapter VIII of the Indian Bill, while seeking to achieve that principle, provides no definitive contours within which the state can exercise its “compelling interest” – leaving the doors yet again ajar for a mischievous government to exploit the lacuna.

A morally conscious government would have read the Puttaswamy judgment as having a disabling implication: i.e. unless an enabling law was passed to give the state rights to do all things that the Bill permits, and the way in which it permits, the state cannot be said to have those rights. So the state could not, for example, have snooped on any devices at all – even for “compelling state interest” – because there was no enabling framework that permitted it to do so. Alarming as it sounds, that interpretation is the only way in which the government of the day would be compelled to pass the enabling legislation in a time bound manner.

Also Read: Given India’s Military Ties With Israel, Modi Would Have Had No Problem Acquiring Pegasus

The blurred line

The balancing act between “compelling state interest” and the “dignity of the individual” is an evolving political bargain that every democratic society is forced to strike. In India, however, we are suffering a double whammy. First that the debate on the political bargain – i.e. a comprehensive privacy legislation – gets pushed down the road. Second, that the line between “state interest” and the interest of the ruling party has all but blurred.

The names of targets that have toppled out of the Pegasus Project reporting do not show any prima facie linkage to “state interest”, but do dovetail with the interest of the political party in power – the BJP. Journalists, key opposition leaders, constitutional functionaries like an Election Commissioner (the sole dissident among his colleagues), the former head of the CBI and a staffer of the Supreme Court are not persons a rational person would naturally associate with terrorism and organised crime. And yet, as a pattern, it has been shown that several of the snooping targets were in the crosshairs of the ruling dispensation or were an asset that could be used as collateral for political purposes.

Political analyst Prashant Kishor – who was also one of the targets – had previously feared that the ruling party’s agenda is to turn India into a single-party state. Historian Ram Guha warns that this pattern is on the lines of the Communist Party of China and Mao Zedong. The Pegasus expose is a glaring testimony that such fears may not be entirely misplaced. In keeping with this totalitarian impulse, Union home minister Amit Shah alleged that the Pegasus Project exposé is an “international conspiracy” to defame India and derail the monsoon session of parliament.

With a sagging economy that The Economist describes as the “sick man of Asia”, perpetually volatile borders and one of highest COVID-19 death tolls in the world, one wonders how misplaced is Shah’s understanding of “fame”.

In nearly all modern democracies, except India, universal suffrage evolved in lockstep with maturing democratic institutions. This is why India, specifically the vision of Jawaharlal Nehru, was hailed as a giant leap forward in the rise of democratic forces of the world. The 1991 economic liberalisation moved India from state dominance towards a mixed market economy, allowing greater control of private capital on the means of production while maintaining its socialistic, or welfare state, moorings.

It is during this time that the Bhartiya Janata Party – financed by the mercantile community – started to show creditable electoral gains. On the political scale, the party projected itself as a proponent of private enterprise.

Since he shuns the press, we do not have the benefit of knowing Narendra Modi’s actual political philosophy from an interview where he was cross-examined. However, the space between his political promises and eventual administrative decisions are instructive. In the run up to the 2014 elections, he promised “maximum governance, minimum government”. Now in power, he and his acolytes have dug their tentacles in almost every imaginable sphere of human life. On the economic front, India has not seen such a protectionist regime since 1991. It has raised tariffs disproportionate to international pricing and pulled out of free trade agreements like RCEP, fearing if Indian industry was robust enough to compete globally. While all of this is done on the pretext of alluring but specious schemes like “Atmanirbhar Bharat” and “Make in India”, in the final analysis, it is nothing but an assault on market principles and an enabler for oligarchy and neoliberalism.

Not only Modi, his party’s most powerful chief minister Yogi Adityanath, widely regarded as one of Modi’s potential successors, is notorious for threatening to expropriate private property at whim or even as retribution.  Like the Chinese ruling party, he doesn’t shy from publicly dictating what clothes his subjects must wear, what songs they must sing and most recently, how many children they can parent.

Also Read: Pegasus Project: 142 Names Revealed By The Wire On Snoop List So Far

Privacy and liberal democracies

In a 2019 report published by Comparitech, a consumer research firm, India’s privacy protection and the state of surveillance was third worst amongst a survey of 47 countries, better only than China and Russia. Western European liberal democracies like Ireland, France and Portugal ranked the best. It stands out conspicuously from the list that the countries that most respected the privacy rights of individuals are also those countries that top press freedom indices and have a higher degree of free-market with moorings of a welfare state.

Every man’s house is his own castle, goes the old English proverb. As technology and human life have evolved, so have the contours of that periphery. It no longer means a physical residence alone, but all those spaces on which the individual has an inviolable right; these are: the privacy of person, of physical space, of choice, and finally, of information. No person, let alone the state, may enter these spaces with impunity.

Just like the fear of expropriation of private property destroys individual initiative, the fear of invasion of privacy destroys the free intellect. No society can prosper with enslaved, timid citizens. Pegasus is not a narrow issue of snooping. It throws before India some of the biggest questions for our generation.

Kabeer Shrivastava is an advocate at the Delhi high court.