Introduction
On 27-10-2021, the Supreme Court of India ordered for the constitution of a committee to probe into the allegation of the Government’s using Israeli spyware, Pegasus, to snoop on its citizens. In an order that has been greeted by approval from almost every section of society, the Court has most notably stated that the Government cannot, by merely pleading national security, claim condonation from judicial accountability.[1] Although the order has the potential for far-reaching consequences, multiple instances in the order have immediate implications, requiring more careful and critical scrutiny.
In this article, the author will firstly explain the entire controversy relating to Pegasus; secondly, discuss the important constitutional provisions for the present purpose, and the existing legal framework that provides for interception and spying, and show how the use of Pegasus does not find a place; thirdly, in light of the aforementioned discussion, show how the order of the Court for setting up the committee is flawed, and provide the alternative solutions, which were not only permissible in law but also, in the humble opinion of the author, consistent with fundamental tenets of the law.
The appearance of a mythical entity
Named after a winged horse from Greek mythology, Pegasus came into the limelight when in September 2018, Citizen Lab, a laboratory based out of the University of Toronto, Canada, released a detailed report on the capabilities of the spyware that was produced by an Israeli Technology firm, the NSO Group. The firm advertised it as “a world-leading cyber intelligence solution that enables law enforcement and intelligence agencies to remotely, and covertly extract ‘data’ from virtually any mobile devices”.[2]
Initially, it was reported that the spyware relied on tricking users into opening malicious links, which would subsequently infect their devices. This means that control over the device will be taken from the person in physical possession of it and given to a Pegasus user who can access the content of the device remotely. Once the individual’s device is infected, it can allegedly access the entire stored data on the device and has real-time access to e-mails, texts, phone calls, and the device’s camera and sound recording capabilities.[3] The website of the NSO Group mentions that end-users of this spyware consist of “exclusively government intelligence and law enforcement agencies”.
Amnesty International’s report from October 2019 mentioned the use of network injections, which meant that the attackers had the “capability to install the spyware without requiring any interaction by the target”, manifesting that the nature of the threat posed was far more potent than initially imagined. This, as per the Pegasus brochure itself, was the factor that significantly differentiated the Pegasus solution from any other alternative on the market.[4]
The winged horse arrives in India
On 18-7-2021, an effort at the global level by a consortium of 17 media houses (one of these media houses being the domestic news-media outlet, The Wire) across the world revealed that Pegasus spyware targeted over 300 mobile phone numbers in India.[5]
The Court heard the matter on 5-8-2021, in which the allegations levelled against the Government were correctly labeled as serious. On 16-8-2021, a “limited affidavit” was filed on behalf of the Government of India by the Additional Secretary, Ministry of Electronics and Information Technology, Union of India. On 13-9-2021, Senior Advocate Mr Tushar Mehta, Solicitor General of India, submitted before the Court that although the Government was willing to answer each doubt before a committee, which it sought to form, apprehensions were raised by Mr Mehta that putting information in the public domain would tantamount to jeopardising national security. However, the Court ruled that the State does not get a free pass every time the spectre of national security is raised, and ordered the setting up of a 3-member Committee, which is to conduct a “thorough inquiry” into allegations of the use of Pegasus software for unauthorised surveillance.
Legal position
According to the Court, the very first compelling circumstance that weighted with it to pass the present order was the allegation of adverse impact on the right to privacy and freedom of speech and also, the fact that the entire citizenry is affected by the allegation due to potential chilling effect[6]. The author shall momentarily discuss the two provisions, contextualising them with the adverse impact of Pegasus spyware.
Intruding into a constitutionally meaningful life
Article 21 of the Constitution of India[7] protects the right to life, and the life that is sought to be protected is something more than mere animal existence. The right to life includes the right to live with human dignity. It is the duty of the State not only to protect human dignity but also to facilitate it by taking positive steps in that direction.[8] In its magnum opus on the topic of privacy[9], the Court has stated that dignity cannot exist without privacy. By recognising the right of every person to make essential choices that affect the course of life, privacy ensures that a human being can lead a life of dignity.
So a question arises: what is the meaning of the right to privacy? According to the Court,
- “Privacy” is the “condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions”. The right to be in this condition has been described as the “right to be let alone”. What seems to be essential to privacy is the power to seclude oneself and keep others from intruding on it in any way. These intrusions … may take any of several forms, including peeping over one’s shoulder to eavesdropping directly or through instruments, devices, or technological aids.[10]
(emphasis supplied)
In other words, for life to be meaningful within Article 21 of the Constitution of India, it must be entrenched with an element of dignity. One of the components of dignity is privacy, which means that an individual ought to be left alone and make choices (in any walk of life) free from intrusion.
In the present order, the Supreme Court has rightly observed that the right to privacy is directly infringed when there is surveillance or spying done on an individual, either by the State or by any external agency. Further, the Court added that the scariest threat to privacy comes in the area known as informational privacy.[11] Despite there being multiple contents of privacy, it is informational privacy, since it deals with protection, preservation, and flow of personal information, that is most significant yet susceptible to government intrusions. This is because technological advancements, such as Pegasus spyware, allow monitoring, tracing of individual’s activities, and behavioural patterns at every moment of an individual’s day, even if they have been left alone.[12] This interference impedes the right of individuals to make free choices and be left alone, thus, infringing upon the individual’s right to privacy, and ultimately, right to life under Article 21 of the Constitution of India.
However, no fundamental right is absolute, and for Article 21, a balance has to be drawn between two competing interests: on the part of the individual, the right to privacy, and on the part of the State, the gathering of information by intelligence agencies through surveillance and using it for the noble and necessary purpose of fighting violence and terror. To balance the weighing scales, the Supreme Court in Puttaswamy case[13] has devised a three-fold test:
(i) there must be a law in existence to justify the encroachment;
(ii) there must be a legitimate State aim so that the pursuance of the same enables and ensures that the law does not suffer from manifest arbitrariness; and
(iii) means adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law.
The ailing mother of all liberties
Freedom of speech and expression, which is mentioned under Article 19(1)(a) of the Constitution of India[14], is appropriately considered the mother of all liberties because it sits at the foundation of all democratic organisations, for without free political discussion, no public education, which leads to accountability, is possible, making it essential for the proper functioning of the process of Government.[15] In Maneka Gandhi v. Union of India[16], the Court, speaking through N. Bhagwati, J. has recognised the significance of this right in the following words:
- … Democracy is based essentially on free debate and open discussion, for that is the only corrective of Government action in a democratic setup. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process, and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.
The primary device for dissemination of this discussion is the press, and that is why freedom of the press is implied from the freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution of India. The inference that can be drawn is that for achieving an effective democratic process, the role of a free press is paramount. The Court has emphasised this role and had said that articles and news are published in the press from time to time to expose the Government’s weaknesses.[17] Thus, the press acts as the fourth pillar outside the Government, keeping the three government limbs in check.[18]
In the present case, the Court has rightly opined that the allegations of use of Pegasus are of particular concern when it relates to freedom of the press, which is an important pillar of democracy. It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect how an individual decides to exercise their rights. Such a scenario might result in self-censorship. This chilling effect[19] on freedom of speech is an assault on the vital public watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information.[20] Furthermore, the Court has highlighted that an important and necessary corollary of such a right is to ensure the protection of sources of information, because without such protection, sources may be deterred from assisting the press in informing the public in matters of public interest.[21]
However, like every other fundamental right, the right under Article 19(1)(a) is not absolute, so it is only logical that neither can its extension, freedom of the press, nor its derivative, protection of sources, be allowed to branch out without restrictions. The requirement for restricting this right is to be found in Article 19(2), the reading of which provides two conditions:
(i) the restriction must be in the form of a law; and
(ii) the law, in turn, must be one of the reasonable restrictions in terms of one of the conditions specified in Article 19(2).
The conditions prescribed for an infringement of Articles 19(1)(a) and 21 to become valid are not identical, except for the first condition, which requires the infringement to be backed by law. The ensuing discussion shows that the legal framework in India does not permit the existence of a stable for keeping this winged horse.
Unconstitutional infringement
When controversy arose in Parliament regarding the use of Pegasus, Mr Ashwini Vaishnaw, the Minister of Electronics and Information Technology, on 19-7-2021, was quoted as saying, “In India, there is a well-established procedure through which lawful interception of electronic communication is carried out….”
Thus, the question is, what is the meaning of interception, and is that meaning wide enough to provide legal backing to use of Pegasus? The meaning of interception is given in Rule 2(l) of the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009[22]. It is pertinent to mention that this rule was passed for furthering the purpose of Section 69 of the Information Technology Act[23], which provides for interception, decryption, or monitoring of information. Interception is defined as the acquisition of the contents of any information to make the contents of the information available to any person other than the sender, recipient, or intended recipient of the communication. For example, suppose there are two electronic devices, A and B, with C being the user of Pegasus spyware. In that case, this rule provides permission for monitoring the content on either device or intercepting information that is being sent from A to B. The rule does not permit either A or B to record and send information to C. In other words, interception does not mean extraction or using the camera and sound recording capabilities of the device, which, as highlighted earlier, are primary features of Pegasus.[24]
Another suggestion can be that since phone tapping is permitted under Section 5(2) of the anachronistic Telegraph Act of 1885[25], it also provides the basis for the use of Pegasus. This understanding is flawed because Section 5(2) of the Telegraph Act only prevents transmission, permits interception, and ensures the disclosure of messages. As per the above example, the law permit interception of a message while it is being sent from A to B or revealing a piece of information sent from A to B. The Act does not permit an entity in control of C to record and share content from individual devices.[26]
Thus, prima facie, the Indian legal system does not permit the State to use Pegasus. As a result, the very first prerequisite of perquisites prescribed by provisions and interpretation of the Constitution for making the infringement of Articles 19(1)(a) and 21 constitutionally valid is not present i.e. the existence of a law backing the infringement, making the act of the Government to use Pegasus unconstitutional.
Differentiating the “is” and the “ought”
The significant doubt against the last statement is that the Court has nowhere mentioned that the Government has used/is using Pegasus. Instead, it has only ordered for a committee to determine the same. In the author’s humble opinion, this order for setting up the Committee is a missed opportunity for holding the State accountable for consequences arising from its conduct.
As mentioned earlier, the petitioners in the present case alleged the use of Pegasus spyware. Initially, the Court was not satisfied with the petitions, as they were completely reliant upon newspaper reports.[27] After this, various other petitions were filed that brought on record materials such as reports of reputed organisations like Citizen Lab and affidavits of experts and various reputable news organisations and foreign governments and legal institutions. The sheer volume of the material placed on record compelled the Court to consider the matter worthy for the exercise of writ jurisdiction.[28] Also, as it has been shown earlier, the law in India does not permit the use of this sui generis spyware. At this stage, it would be relevant to mention that it is the duty of State, generally, to reveal all the facts and information in its possession to the Court and provide the same to the petitioners.[29] In certain cases, the Government may decline to provide information when constitutional considerations exist. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit.[30] In the present case, “there has only been an omnibus and vague denial in the ‘limited affidavit’ filed, … which cannot be sufficient”.[31] The totality of circumstances made it a fit case for drawing an adverse inference against the State.[32]
Furthermore, the Court has recognised that in most situations, it is the State which may have more comprehensive information that is relevant to the matters at hand in such proceedings.[33] The general position of law is that the burden of asserting, and proving, by relevant evidence a claim in judicial proceedings would ordinarily be placed upon the proponent of such a claim; however, the burden of protection of fundamental rights is primarily the duty of the State.[34]The author humbly opines that by passing the buck to the committee when circumstances were ripe for attributing accountability to the Government, the Court has an introduced element of subjectivity, which could, and should have been avoided. In addition, without proper justification, the Court has used the second-best option for determining the facts relating to controversy, when it is already mentioned in the present order that the State has more comprehensive information and was duty-bound to reveal the same.
In the humble opinion of the author, the appropriate measure of accountability was asked for in the prayer of Senior Advocate Mr Shyam Divan, who sought the issuance of a direction to file a detailed affidavit to clear the matter.[35] Instead, while recognising the delay tactic used by the Government, the Court went on to state that “no useful purpose would be served” by issuing the directions which were asked for by Mr Divan.[36] Despite multiple reminders, the Government only filed a limited affidavit, which was repeatedly repeated to be insufficient to clear its stand. The Government was then allowed to go scot-free despite causing delay, instead because of it, an allowance that goes against a fundamental tenet of law that no one shall be allowed to benefit from its wrong. A better course of action would have been to issue the direction as asked for by Mr Divan, and if the State still disregarded the Court’s order, to charge it with contempt.
Conclusion
It is undeniable that in the present case, the Supreme Court has made certain observations, which can positively influence the judicial accountability of the State, none more so than restricting the State from getting a free pass every time the spectre of “national security” is raised. It is significant because recently, this claim had become a cloak of complete impunity for the State from judicial accountability.[37] Also, the Court has rightly denied the Government’s claim for forming a committee to look into the allegations, as it would have been a clear violation of a fundamental principle of law that justice should not only be done, it must be seen to be done.
However, if one scratches the surface and looks beyond the effusive eulogy, significant flaws in the operative part of the order begin to emerge.[38] Indubitably, the observations merit praise, but those observations do not lead to actual accountability, which was not only legally justified but warranted under the circumstances. To summarise, it would seem that with the present order, justice is seen to be done, but the jury should be very much out regarding whether justice has been done or not.
*Patna based Lawyer. Author can be reached at shubhampriyadarshi@hotmail.com
[1]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985..
[2] Mazoomdaar, J. (13-8-2021), Explained: How Pegasus Spyware Infects a Device; What data May be compromised, The Indian Express, retrieved on 4-11-2021, from <https://indianexpress.com/article/explained/ pegasus-whatsapp-spyware-israel-india-7410890/>.
[3]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 4.
[4]Mazoomdaar, J. (13-8-2021), Explained: How Pegasus Spyware Infects a Device; What data May be compromised, The Indian Express, retrieved on 4-11-2021 from <https://indianexpress.com/article/explained/ pegasus-whatsapp-spyware-israel-india-7410890/>.
[5]A Timeline of the Pegasus Snooping Scandal, The Indian Express, (27-10-2021), retrieved from <https://indianexpress.com/article/india/a-timeline-of-the-pegasus-snooping-scandal/>, accessed on 6-11-2021.
[6]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 58.
[7]Constitution of India, Art. 21.
[8]M. Nagaraj v. Union of India, (2006) 8 SCC 212.
[9]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[10]K.S.Puttaswamy v. Union of India, (2017) 10 SCC 1, 540.
[11]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 37.
[12] Payal Thaorey, Informational Privacy: Legal Introspection in India, ILI Law Review Vol. II, Winter Issue 2019.
[14]Constitution of India, Art. 19(1)(a).
[15]Romesh Thappar v. State of Madras, AIR 1950 SC 124.
[16](1978) 1 SCC 248, 305-306.
[17]Bennett Coleman &Co. v.Union of India, (1972) 2 SCC 788.
[18] Jain, M.P. (2016), Indian Constitutional Law, (7th Edn., reprinted), LexisNexis.
[19]A doctrine that was used first in the United States. It applies to cases where governmental laws and governmental (or private) activities are of a nature that while not directly censoring free speech, nonetheless have the impact of self-censorship. For a further discussion on the topic, see <https://indconlawphil.wordpress.com/2013/12/05/the-chilling-effect-in-india/>.
[20]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 41.
[21]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 42.
[22]Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, R. 2(l).
[23]Information Technology Act, 2000, S. 69.
[24] Banerjee, S., Pegasus: The Law may Permit the State to Intercept Phones but Not to Weaponise Them, The Wire, (18-8-2021), retrieved from <https://thewire.in/law/pegasus-our-law-permits-the-state-tointercept-phones-but-not-to-weaponise-them> (accessed on 5-11-2021).
[25]Telegraph Act, 1885, S. 5(2).
[26]Banerjee, S., Pegasus: The Law may Permit the State to Intercept Phones but Not to Weaponise Them, The Wire, (18-8-2021), retrieved from <https://thewire.in/law/pegasus-our-law-permits-the-state-tointercept-phones-but-not-to-weaponise-them> (accessed on 5-11-2021).
[27]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 44.
[28]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 46.
[29]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 48.
[30]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 52.
[31]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 53.
[32]Parthasarathy, S., The Court’s Order on Pegasus Still Falls Short, The Hindu (1-11-2021), retrieved from <https://www.thehindu.com/opinion/lead/the-courts-order-on-pegasus-still-falls-short/article37274506.ece> accessed on 22-1-2022.
[33]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 48.
[34]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 48.
[35]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 55.
[36]Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, para 56.
[37]Bhatia, G., The “Yes or a No” the Court Must Ask About Pegasus, The Hindu (12-10-2021), retrieved from<https://www.thehindu.com/opinion/lead/the-yes-or-a-no-the-court-must-ask-about-pegasus/article36953053.ece>, accessed on 22-1-2022.
[38] Kumar, A.P., SC Ignores ‘Where There is a Right, There is a Remedy’ Adage in Pegasus Order, The Quint (28-10-2021), retrieved from <https://www.thequint.com/voices/opinion/supreme-court-ignores-where-thereis-a-right-there-is-a-remedy-adage-in-pegasus-order>, accessed on 10-11-2021.