SC’s decision on Pegasus raises troubling questions - Hindustan Times
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SC’s decision on Pegasus raises troubling questions

Aug 30, 2022 07:30 PM IST

Several issues regarding the spyware case need to be addressed, including why the SC sealed the report and why the State chose not to cooperate during the committee’s pursuit of the truth. As a matter of public interest, accountability and action must be non-negotiable

In July 2021, the Pegasus spying scandal broke across the world. Investigative journalism revealed that the Israeli spyware, Pegasus – allegedly, only sold to governments – was used in many countries to surveil dissidents, journalists, and the political opposition. According to these investigations, many such prominent figures in India had also been potentially subjected to Pegasus-based surveillance.

Keeping the report secret sends out a signal that issues of mass, potentially illegal, surveillance are matters between the court, its committee, and the government. (AFP)
Keeping the report secret sends out a signal that issues of mass, potentially illegal, surveillance are matters between the court, its committee, and the government. (AFP)

The revelations of this scandal caused global outrage, with investigations being launched in many countries. In India, a petition was filed in the Supreme Court (SC), and was heard by a bench led by the then Chief Justice, NV Ramana. After several hearings, the SC constituted a committee – headed by a retired judge, justice RV Raveendran – to look into the allegations. After many months, the committee submitted its report to the SC.

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According to the excerpts that were read out by the Chief Justice in court, the committee found malware in five of the phones that were submitted to it, but could not “conclusively prove” that the malware was Pegasus. The committee also stated that the government had not cooperated with its investigation. After this, the report was sealed, and deposited in the SC.

Unfortunately, this entire sequence of events raises more questions than it answers. To begin with, there is the SC’s extremely problematic decision of keeping the committee’s report sealed and not only unavailable to the public, but even to those individuals whose phones were under surveillance. Keeping the report secret means that there is no way that the committee’s methodology – and its finding that there was no “conclusive proof” that the malware was Pegasus – can be tested by independent cybersecurity experts. Peer review is an essential element of achieving scientific and technical accuracy, and keeping the committee’s report out of the public domain will damage its credibility severely, as well as the credibility of its conclusions.

Indeed, keeping the report secret sends out a signal that issues of mass – and potentially illegal – surveillance are matters between the court, its committee, and the government, and not matters of intense public interest that the citizenry has a stake in. This inverts the entire relationship between the individual, the State, and the courts. The courts are meant to shield individuals from State excess, State impunity, and the violation of constitutional rights. Here, however, it appears that the court’s focus is on withholding information from individuals about the violation of their constitutional rights, rather than openly and transparently protecting them.

The second problem is the committee’s finding that the government refused to cooperate with the investigation. This continues an unfortunate trend that began during the hearings themselves: The government consistently refusing to state whether or not it had used Pegasus, by repeatedly citing the shibboleth of “national security.” Note that the government was not asked to reveal the specific details about whom it had used the malware on; it was only asked whether it had used it in the first place. However, not only did the government refuse to answer the question, the SC, at no point, seriously pressed it for an answer.

What we have, therefore, is a situation where there has been a potentially grave violation of civil and constitutional rights, where citizens have gone to the SC to seek a remedy for that violation, and where the government has refused to cooperate, both with the court, and with the court-appointed committee tasked with investigating these violations.

The question, then, arises: What – if anything – will be the consequence of this non-cooperation? One can easily imagine what would happen to an individual, were they to refuse to cooperate with a police investigation, or a court-monitored probe: The consequences would be immediate and severe. The whole point of living in a democracy governed by the Constitution and the rule of law is that nobody – and especially not the government – is above the law.

If the court simply notes that the government has not cooperated with its committee, and leaves it at that, it not only undermines its own authority, but opens the door to future impunity. Once you give the signal that cooperation with a court-mandated investigation into serious civil rights violations is optional, it is a green light for future, and even more severe, violations of the rule of law.

At the end of the day, more than one year after the Pegasus scandal first broke, and a full year after the case was filed in court, no accountability has been fixed, and no action taken. This is discouraging for all those who believe in the rule of law, and in the SC as the final custodian of the Constitution. On the next date of the hearing – fixed for four weeks from now – it is, therefore, important that the court addresses some of these crucial, unanswered questions.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

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