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Supreme Court & Government on Pegasus: Tussle Inevitable? || Midweek Matters 36

13-11-2021published_dt 2021-11-13T09:47:50.481Z13-11-2021 15:17:50 IST
2021-11-13T09:47:50.481Z13-11-2021 2021-11-13T09:47:50.481Z - - 18-01-2022

Hello and Welcome to

Midweek Matters.

On 27th October, the Supreme Court of India has given an order on a dozen writ petitions that sought the court's intervention on the alleged use of Pegasus spyware to surveil on a number of Indian citizens. The court in its order has constituted a Technical Committee comprising of three members. The work of the Committee will be overseen by Justice RV Ravindran, a retired judge of the Supreme Court. The Judge will be assisted in this task by another three persons. The terms of reference of the Committee are wide ranging and comprehensive. Its is tasked to enquire, investigate and determine 7 points. And to make recommendations on 6 points, with an option of recommending on any other ancillary matter that the Committee may deem fit. Those of you who have not read the Order, I strongly urge you to read it. It’s not very long. Only 46 pages. It is preeminently important that all of us who are interested in keeping democracy and rule of law alive in our country read it. I have given a link to the Order in the description below. Today I will share my reflections on what the Order's deeper significance, what it tells about our Supreme Court's view of the fundamental principle of citizens' right to privacy, what the government thinks about accountability with regard to this fundamental principle, and how the divergence between these two positions is likely to play out in the weeks and months to come. I will also try to meditate on what could be the consequences for our democratic polity if this divergence leads to a tussle between the executive and the judiciary. Such a tussle, I think, is in the realm of possibility.

I shared my reflections on the Pegasus issue when it hit headlines for the second time in July this year, after it’s first appearance in 2019. I wrote an article for the Hindu newspaper and did a Midweek Matters episode then. In both these, I concluded with these words:

"The only institution in the present situation that can make the government accountable is the judiciary. The track record of our apex court on major issues of defining importance to our national life is at best mixed in the recent past. What it chooses to do or not do now can make a difference to India. The options before it are clear as they are stark. To allow the present government a free run in turning India into a surveillance state is one. The other is to stop the government in its tracks, restore to its people the gift of a free and liberal state that the founding fathers of Republic gave them. The country has very little time."

I have given the links to the article as well as the episode in the description below.

Now let’s look at the reasoning through which the Supreme Court bench headed by the Chief Justice of India arrived at the decision to constitute a Technical Committee that would work under the supervision of a retired Judge of the Supreme Court. The court did not rush in. This is the most important point that we should note. The bench said in its order that initially it was not satisfied with the writs that were filed because they were entirely reliant on newspaper reports. However, the subsequent petitions filed, including by those who were purportedly the victims of Pegasus spyware attack, have brought in additional material, documents, affidavits by reputed experts, reactions of foreign governments and reports by organisations such as Citizen Lab. That led the court, the bench said, to consider exercising its jurisdiction in the matter. The Bench has established that it was supplied with sufficient material to invite its intervention by the petitioners.

Now, let’s look at the Government of India's response. After having these documentation from the petitioners, the Court gave the Union of India, the respondent, ample time and opportunity to supply information and offer clarification. The bench also made it clear to the Union of India that it would not seek any information that may affect the national security concerns.

In spite of repeated assurances, the Solicitor General representing the Union Government only submitted a 'limited affidavit.' The Supreme Court held that the Union Government should not take an adversarial position when the fundamental rights of the citizens are at stake. But Government has sought to justify its non submission of a detailed affidavit citing the concerns of national security. The same position that it took in Parliament and in public discourse. It is here that the court made a significant observation in its order. And I quote the passage:

"It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of "national security" is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review."

This actually meant that the Court has told the Government in no uncertain terms that it cannot play the national security trick on it and preempt a judicial review of its actions, and make it a mute spectator. The court found fault with the government for filing what the government itself called a 'limited affidavit' which hardly shed any light on the facts of the case. It clearly declared that the government's course of action in a matter concerning the fundamental rights of the citizens is unacceptable. Thus, the court held the government responsible for its intervention in the matter.

"If the Respondent-Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different"

the court said. In other words, the court said that it was the government that invited its intervention by refusing to clarify its position on the issue. One of the compelling circumstances listed by the court that weighed with it to pass the order was, in the words of the Court,

"No clear stand taken by the Respondent-Union of India regarding actions taken by it."

The offer of the Government to constitute a Committee of Experts to go into the allegations was summarily rejected by the court as the allegations were against it or a state government and such a course of action would have violated the principle that 'justice must not only be done but also be seen to be done'.

Another important observation of the court must be noted here. It said it was un uphill task for it to find experts who are independent, free of prejudices and are competent. Some experts the court approached politely declined to serve on the committee for personal reasons and others had conflict of interest. This is one of the reasons why the constitution of the committee was delayed by weeks after the court announced its intention to do so in the open court during hearing.

Let me bring the main elements together. First, the government refused to give a detailed clarification to the court on the allegations made in the petitions. It cited reasons of national security for not offering detailed clarification. Second, the government said it would constitute a committee of experts to examine the allegations against itself. Third, the court found it difficult to constitute the committee, to find members who are independent, free of prejudices and competent and who are willing to be part of the probe.

The third element first: it tells us about the atmosphere of fear and pressure that prevails in the country. People are afraid of being a part of a real probe against the government. It has serious implications for our democratic polity.

The second element: offer by the government to constitute a Committe to go into the matter. That the government had the audacity to suggest this to the Supreme Court speaks volumes about the mindset of the government. That it can trick the Court and the country into believing that a probe was done and the government was given a clean chit. It expected the Supreme Court to be compliant as it got used to in the recent past. And that it can easily find pliable experts who can actually write a report that it wants. It did not think it necessary to even look interested in a fair and impartial probe.

And now to the first element: the government is in a stonewalling mode. It only strengthens one's apprehension that it has something to hide. It could have said one of two things, to the Parliament and people. And later to the court, if it were clean. One. That it has not bought the Pegasus spyware suite. And it’s ready to probe who surveilled on our citizens. Two. It could have said that it bought and used it but strictly in accordance with the rules and procedures that authorise such surveillance. It is this refusal to say one or the other, this stone walling, this attempt to use the bogey of national security that raise serious doubts and fears about this government. That it is well advanced on the road to turning our Republic into a surveillance state.

The government with this surveillance mindset, this stone walling attitude, and evidently with things to hide is unlikely to cooperate with the Justice Ravindran Committee. It will do everything possible to subvert the proceedings of the committee. It will delay where outright denial of records looks like a bad PR. To stymie a committee for eight weeks or even sixteen weeks is no big deal for a government that is desperate to hide the truth. More than anybody else the regime knows that if a thorough probe is indeed successful it will not end up in pointing out mere procedural lapses by the government. The terms of reference are such that, the probe, if carried out to its logical conclusion will in fact break open the secret vaults of the deep surveillance state that this regime is dependent on for its existence, continuance and probably, it’s apparent political invincibility. What is at stake for it far is too high. Not simply a government, but a whole majoritarian Project.

An ugly tussle between the Committe and the government is a real probability. A no holds barred push back by the regime should not be ruled out. And by extension, a confrontation between the regime and the Supreme Court. In other words, we are at a point of inflection in the life of our democratic Republic. We will be fortunate if this doesn’t turn out to be a gloves off, bare knuckled confrontation between a sinister deep state on the one side and rule of law on the other. If it were to be, the strength of the forces and institutions of rule of law as they stand today is insufficient. They need a massive backing by the civil society. So that they withstand the onslaught by the deep state of the current regime. Let’s not lull ourselves into a comfortable belief that this cannot happen in India. Anything can happen anywhere. Remember the mobs crawling up the US Capitol on 6th January this year? But luckily, that mob was disparate and unorganised. If some such thing were to happen in India, we won’t be so lucky. Not long ago we have seen in Ayodhya what an organised, trained, ideologically driven, highly motivated and disciplined mob could do.

I have a wish and a hope. My wish is I’m completely wrong, my apprehensions are unfounded. My hope is that the Supreme Court summons sufficient strength to stand its ground, and it is the government that blinks, admits the truth and quietly submits to the consequences, whatever they may be.


That’s all for this week. Will be back again next week

Wednesday afternoon, lunch time at 1:00 o’clock.

Stay safe and do take good care of yourselves

And all your loved ones.

Until then, Bye.