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The Supreme Court’s interim order on the Pegasus issue cannot be interpreted purely in legal terms. Its implications cover many dimensions, not least the fact that the judgement brings a sense of catharsis to a democracy which was finding it difficult to breathe.
The Pegasus controversy came on the back of a cumulative anxiety causing a chilling effect on free speech – whether it was the multiple sedition and criminal cases against activists and media persons, muzzling of democratic dissent, or the draconian back door amendments to the information technology law, seeking to totally control online news media.
The Pegasus surveillance seemed like the final assault on the democratic institutions like the media, civil society, judiciary, opposition and Election Commission.
Not surprisingly, the Supreme Court’s interim judgement was received with a sense of relief not seen in recent years. Some senior advocates welcomed the court order with adjectives such as “historic” and a “watershed”. It was described as a prima facie indictment of the Modi government. The citizens, in general, heaved a sigh of relief. Former chairman of The Hindu newspaper and a petitioner in the Pegasus matter, N. Ram, called it a major blow in favour of free speech and investigative journalism.
Another reason why an interim order to set up a three-member committee to investigate the Pegasus matter was received with so much reassurance was because the civil society was waiting for the Supreme Court under a new chief justice of India to deliver that one appropriate message to the Modi regime. With its interim order, the court seemed to have fulfilled that psychological need, however incremental it may be. It was certainly a moment worth savouring.
The underlying message of the apex court order and its carefully crafted narrative is as important as its pure legal interpretation. The spirit of the order makes it amply clear that privacy and free expression are constitutional values which cannot be sacrificed at the altar of national security. Their salience is paramount, the order clearly spelt out.
The sheer mandate of the three-member committee headed by a former Supreme Court judge with a stellar reputation is another strong message in itself. Some skeptics say the government will stonewall this committee just as it stonewalled the CJI-led bench earlier.
Even if this were to happen, Justice R.V. Raveendran has a wide enough mandate to call experts from India and abroad to bring some home truths before us. He has the power to investigate and the government is not the only source which can assist in investigation of Pegasus surveillance.
For instance, the Justice Raveendran Committee can summon former intelligence officials and seek information with the full backing of the Supreme Court. Even if top retired officials familiar with the use of Pegasus choose to maintain a silence, and not necessarily deny its existence, the legal principle of adverse inference could meaningfully point us in a certain direction. There are many possibilities when a full investigation is conducted.
Significantly, the Supreme Court order also nudges the committee to look at the 2019 incident when WhatsApp accounts of many journalists and activists were hacked by using Pegasus. The government officially acknowledged this and wrote to WhatsApp, which eventually plugged the security breach.
However, the government did not initiate its own inquiry into such breach of privacy and free expression. It didn’t even write to the Israeli company, NSO Group, seeking more information. This shows wilful apathy on the part of the Centre. Even in the present instance, the Narendra Modi government is the only one which has been in complete denial while many Western governments have not only acknowledged the use of Pegasus but actively sought clarifications from the Israeli company.
The Supreme Court order cites the concerns raised by foreign countries as well as the “vague and omnibus denial” by the Indian government as compelling reason to investigate the matter.
Justice Raveendran could invite the Citizen Lab from Canada whose technical assistance has helped WhatsApp file a case in California against the NSO Group in the 2019 Pegasus surveillance case. The US court rejected NSO’s claim that a foreign court cannot have jurisdiction over an Israeli company. US jurisdiction was asserted on the ground that the surveillance was in breach of local privacy and data protection law.
Significantly, the Supreme Court committee will also go into the current legal framework for protecting breach of privacy and data protection, and is mandated to recommend interim legal measures to protect the privacy of citizens until Parliament makes a comprehensive law. This will also be a significant step in the direction of safeguarding both privacy and free expression. Overall, the committee can make wide-ranging suggestions which the Supreme Court can consider in its final judgement. There is enough scope for optimism in this respect.