Too many cases have been diluted with the appointment of an external panel, in turn compromising civil liberties.
Supreme Court of India on 27 October independent committee appointed To investigate the allegations that the central government used mobile phone spyware pegasus Invading, accessing and spying on equipment used by citizens of India. Court’s direction has been appreciated. But the time for our paean to sing has not come yet. There is much in the pronouncements of the court of law, but its order still falls short of delivering justice.
still no guarantee
Faced with the government’s steadfast refusal to file a proper affidavit confirming or denying the use of Pegasus, the court would have thought, would have issued a writ forcing the state to produce evidence. Instead, it left the finding of the facts to a committee of experts. There is no guarantee that the government that decided to remain silent before the court will now somehow come clean before an outside panel. So the question is if the government fails to cooperate, what should the court answer?
The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media. These reports revealed that hundreds of phone numbers from India had appeared in a global list of more than 50,000 numbers that were selected to be monitored by clients of the Israeli firm, NSO Group. NSO has since confirmed that its spyware is sold only to governments, primarily for the purpose of fighting terrorism. The petitioners said that forensic analysis had confirmed the presence of Pegasus on the devices of at least 10 Indians, some of whom were before the court.
time-tested strategy
But the cases presented a set of familiar challenges. In response to the allegations leveled against it, the government called for its most beloved bogey: national security. It effectively claimed that the interests of the country’s security meant that it was not obliged to tell the court whether it had actually used the software or not. Further, according to it, the adoption of this argument virtually forbade the Court to conduct further investigation. This is a strategy that has worked well in the past. In matters allegedly involving national security, the Court has shown an extraordinary level of respect for the executive.
The cases also posed another obstacle: a contest over facts. The petitioners were insisting on the incident of illegal surveillance. The government was not giving any clear response to their claims. Then how did the court uncover the truth? Again, in recent times, the Court has tended to quash the claims made against the State on the ground that it cannot decide the veracity of a petition without conducting a thorough examination, the conduct of which is in the hands of constitutional courts. is beyond bail.
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Now, to some extent, in its order to appoint a committee, the Court has done away with the trend of absolute respect. The Court has held that the government’s mantra of national security has no magic formula, that the power of judicial review is not denied simply because the state claims that the country’s security is at stake.
a clear path to accountability
This order rightly holds that spying on a person, whether by the state or by an outside agency, amounts to a breach of privacy. This does not mean that all surveillance is illegal. But, as the order concludes, any limitation on a fundamental right must be proportionate and based on evidence. “In a democratic country governed by the rule of law,” the judges said, “indiscriminate spying on individuals cannot be permitted under the Constitution, except by adequate statutory safeguards, by following procedure established by law.”
Holding thus, the Court has effectively held that an act of surveillance must be tested on four grounds: first, the action must be supported by law; second, the state must demonstrate to the court that the ban imposed is for a legitimate governmental purpose; Third, the state must demonstrate that it has no less intrusive means to achieve the same objective; And, finally, the state must establish that there is a rational relationship between the limit imposed and the target under the measure.
The test provides a clear path to hold the government accountable. But for a consistent application of these standards, the court must arrive at a conclusion on the facts. Usually, in privilege proceedings, evidence is taken on affidavit. In other words, the parties present their side of the facts through oath, written statement before the court. The court then appraises the evidence to arrive at a deduction.
In the Pegasus-related cases, each of the petitioners corroborated a set of facts, claiming that the mobile phones of Indian citizens – from journalists and activists to politicians – were subject to infiltration. In response, the government refused to file anything other than what it described as a “limited affidavit”. Apart from the general rebuttal of the petitioners’ case, the court observed that the affidavit “contains no clarity as to the facts of the case.”
to court
The absence of a clear refusal on the part of the government, the order said, should lead to a Prima facie belief, if nothing else, that there is truth in the claims of the petitioners. Having thus conducted, one would have expected that the Court would formulate a set of specific questions seeking answers from the State. These may include the following: Did the government buy Pegasus? Did it use software on Indian citizens’ phones? If so, was such use supported by law? What were the reasons for which the use was authorized?
If the answers to these questions were still unanswered, the primary principles of evidence law would allow the Court to make what is known as an “adverse inference”. A party who fails to answer the questions put to him will only run the risk of the court finding a fact against him. If on this ground the case of the petitioners is taken to be true, then there is no doubt that there has been an unjustified violation of the Fundamental Right. The court can then give any number of remedies: it can declare that the government was wrong; And it could issue a writ obliging the government to disclose all materials relevant to the purchase and use of Pegasus.
Therefore, it is not clear why we need a committee. Certainly, the Court has the power to collect evidence on its own, in exceptional cases, to allow the cross-examination of important witnesses. A committee may well be necessary where the act of gathering evidence is somehow beyond the approval of the court. But it is not so here.
Ultimately, in the future, the Court should think more carefully about questions of evidence and the rules of evidence. Ad-hoc committees – sterling as their members – cannot be resolved. Appointment of an external panel sends too many cases to the back burner, and in the process, civil liberties are compromised.
For now, it is encouraging that the court has kept these matters under its purview. If, within eight weeks’ time, when the matters are scheduled to be listed, that the Government is delaying or obstructing the Committee, it shall be required to exercise its prerogative powers to provide a declaration of illegality and to issue mandatory orders. should proceed. To compel the state to perform its constitutional duties. Only then will the Court’s various eulogies for the values of privacy have any true meaning.
Suhrith Parthasarathy is an Advocate practicing in Madras High Court.
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