In a democracy, how far should the government be allowed to peek into the privacy of citizens? The Government of India has always said that there is no limit, as long as this act is done in the interest of national security. The present government has handled all Pegasus related issues on this basis. The recent decision of the Supreme Court gives a convincing answer to this question.
The top court said that national security is not a power for the government to spy on its own citizens. The expert committee constituted by it has been mandated by stringent terms of reference. Significantly, the court had refused to accept the government’s suggestion to set up a government-sponsored commission to investigate the matter. As a result, “we the people” would like to call this a landmark decision. It raised the country’s honor and democratic values to new heights. This decision has been taken under the fundamental right to privacy. Article 21 of the Constitution states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
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The Supreme Court had on an earlier occasion interpreted the Constitution and emphasized the primacy of secrecy. In the Aadhaar case, in which the author was also a party, the court determined privacy as a fundamental right. The present government has always had a different view on this important issue. There were allegations that the government was tapping citizens’ phones by using multiple agencies at its disposal and infringing citizens’ right to privacy.
Given its nature and efficiency, the advent of Pegasus malware brought the issue to a more alarming level. This revelation by a media consortium Pegasus Project was so shocking that it shook the whole world. According to their analysis, Pegasus was used in India as well as more than 45 other countries. The unfortunate list included journalists, politicians, judges and activists. Even the Union Cabinet ministers were not spared. In our country this has been vigorously debated. Initially, the government bolstered its argument by issuing an outright denial of the report. When this failed, his strategists worked round the clock to protect themselves from a catch-22 situation.
In the midst of this controversy, the monsoon session of Parliament arrived. The main objective of the government was to prevent any discussion on Pegasus. On the other hand, the opposition was eager to hold the government accountable. But the traditional avenues for MPs to voice their concerns were systematically undermined. Naturally, opposition members tried to ask as many questions as possible on Pegasus.
My experience in this regard is worth mentioning here. Strictly following the procedures, I gave a notice to the following questions: “Number of MoUs [MoUs] Government has entered into agreements with foreign companies and given sector wise details; Whether any of these agreements have been signed with foreign companies to curb terrorist activities through cyber security and the details thereof; And whether Government has entered into MoU with NSO Group to curb terrorist activities through cyber security across the country and if so, provide the details thereof.
With due diligence, the Rajya Sabha Secretariat temporarily cleared the questions and fixed a date for their inclusion during the Question Hour. As per routine, the questions were directed to the concerned ministry for answers. But that was the end of it. These questions were never brought before the Parliament. Furthermore, the rights of parliamentarians were suppressed by the authoritarian arrogance of the government. The monsoon session was marred by untoward incidents due to the government’s reluctance to discuss matters related to spyware. An MP can be forced to question the relevance of Parliament when it is not allowed to examine important subjects including the Pegasus issue, farmers’ struggles and price rise. When opposition members tried to talk about Pegasus, their microphones were turned off.
We have heard Prime Minister Narendra Modi reiterating that Parliament is a way to debate national concerns. On the eve of the monsoon session, he also spoke about the readiness of the government to provide necessary space for the democratic functioning of Parliament. These assurances are like lines drawn on water. Under the guise of national security, he built a fort to prevent any discussion on Pegasus. Even the spyware’s country of origin, Israel, has started investigating it, as have countries such as France and Hungary. However, the Indian government, which talks a lot about transparency, was adamant to ensure that no mention of Pegasus was made in the House. He used national security as a trump card. One “self-reliant [self-reliant]“The government is propagating the ideology of ultra-nationalism and then handing over the key to national security to spyware controlled by a foreign country.
As far as national security and fundamental rights of a citizen are concerned, the terms of reference of the Supreme Court were clear. The state cannot be hostile in the defense of fundamental rights. The government defends its actions by using the term “lawful interception” to justify its actions under the guise of national security. If that argument is allowed to go on indefinitely, the country will turn into a police state, with civil liberties becoming a thing of the past. The significance of the apex court’s landmark judgment is that it underscores that restrictions on the right to privacy have to undergo constitutional scrutiny. Citizens will certainly see this decision as a protective measure in protecting their civil liberties and fundamental rights. But they are curious to know how the government will cooperate in the fact-finding journey of the court-appointed expert committee.
Binoy Viswam is an MP and secretary of the CPI National Council.
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