Uploaded on November 6, 2021
Decoding the SC's Interim Order on the Pegasus Case
Dr. Mohammad Manzoor Alam
Pegasus, owned by the Israeli tech company, NSO Group, is spyware that, once planted in a device, transmits all the details without any prior approval or even a click by an individual. It made headlines in India in November 2019. It was not until mid-2021, the spyware case jolted the citizen's belief and understanding of online surveillance, which also invaded their constitutional right to privacy and freedom of expression. It was reported that the malware has allegedly assisted in snooping around 50,000 phones belonging to politicians, bureaucrats, activists, journalists, and ordinary citizens worldwide.
Though the Centre has been dodging the allegations of spying on individuals by adopting a silent treatment, the Pegasus case came into the limelight once again after the Supreme Court's interim order. The order has received mixed reactions; some say it is tokenistic, while others hail the decision. But what exactly does the judgment entail for ordinary citizens?
The order could be unraveled in terms of repeated appeals of the judiciary to make the justice delivery system transparent, accessible, and streamlined. The Union government's reckless response to the petitions described the insincerity with which the central government was dealing the case. The SC very aptly pointed to the laid out and generic responses of the petitions by the government that was soon worsened as the Centre began to withhold any information in the case pertaining to "national security." Asking to verify the argument raised by the Union government, the judiciary is strengthening and maintaining accountability and transparency that it aspires to achieve. It is an open secret by now that India is going through multi-faceted crises. The failure to uphold constitutional rights is one of them. Therefore, the Interim order has been analyzed as a breath of fresh air compared to the noticeable collapse of the pillars of democracy to guard citizens' rights and lives.
The court has directed to form a 3-member committee, supervised by retired SC judge RV Raveendran, independent of any influence, to investigate the allegations of illegal snooping that resulted in violating fundamental rights and compromising privacy – a perfect recipe for a tyrannical and autocratic state. The real test of procuring the confidence of the masses by the judiciary starts from here, in my opinion. Following a systematic procedure in the investigation, the court has to inspect the functioning of the committee to avoid the submission of generic suggestions/recommendations by the same. The committee needs to follow up and function in its ample potential to seek answers from the government and not lose its purpose in the extravagance of social media praise and feel-good headlines.
The judiciary is conscious of the power it holds to keep the institutions accountable if need be; therefore, the opportunity to retain its jurisdiction in upholding the constitutional rights and guarantees for the citizens of India should not be missed at any cost. Although the government, under strict legal conditions, is empowered for surveillance on its citizens, the court has to take a call on the legitimacy of installing spyware to pry on people's private mobile phones. The Pegasus case has become symbolic of the authoritarian rule the current regime has adopted, and the final verdict would decide whether the fundamental right to privacy and free expression is significant for the democratic values that India so proudly promotes? The government has to be reminded that surveillance under the guise of national security does not authorize them to illegally hack the devices of its citizen; neither can the argument be used as a defense to brush off the accountability of the world's largest democracy in the world.