'Centre Thought They Could Bludgeon The Court Like Earlier That We Say This & The Court Will Accept It' : Justice Deepak Gupta On Pegasus Order

The Supreme Court's order in the Pegasus case is getting widely hailed.

Yesterday, a 3-judge bench of the Supreme Court of India of Justices N.V.Ramana, Surya Kant and Hima Kohli ordered the constitution of an independent expert committee to look into the allegations of widespread and targeted surveillance of politicians, journalists, activists, etc using the Pegasus software.The functioning of the committee will be overseen by retired Supreme Court judge Justice RV Raveendran and the Technical Committee will comprise three members. The Court has asked the committee to investigate the matter expeditiously. The matter will be listed after 8 weeks.

LiveLaw spoke to Justice Deepak Gupta, former Supreme Court judge, N.Ram, former Chief Editor of 'The Hindu' and one of the petitioners in the Pegasus case, Advocate Vrinda Bhandari and Apar Gupta from the Internet Freedom Foundation on the significance and implications of the Court's orders directing that an independent committee be set up to probe the Pegasus issue.

Justice must not only be but seen to be done: Supreme Court

The order is being described as being "a historic decision" and "watershed in the history of the court" for a number of reasons. First and foremost being the fact that, despite strong arguments made by the respondent-government of India that Court allow the Union of India to constitute an Expert Committee which would be under its supervision, the Apex Court has gone ahead and set up a committee under the aegis of a retired judge of the Supreme Court of India. Speaking to LiveLaw, Retd.Justice Deepak Gupta echoed the sentiment- "I think the main message that goes out from the setting up of the committee is that the Supreme Court said we are not going to listen to the Government of India that says we are going to set up a committee of experts."

That an independent committee headed by a retired judge of the Supreme Court be set up to investigate the allegations had been a common demand of all the petitioners in the case. N.Ram feels this has been a "vindication" of the petitioners demands. "The position we have taken has been vindicated in so far as two basic prayers are concerned- one is to get the government to state on affidavit whether they've used Pegasus against individuals or not. The second one is the prayer to set up an independent committee by the Supreme Court, headed by a retired judge and that has been accepted. The government's counter proposal to have its own counter-committee has been rejected because there will be an issue of bias. The order notes that not only must justice be done but also be seen to be done," he adds.

While making note of the compelling circumstances that weighted the court while passing the order, the Bench noted that "we decline the Respondent-Union of India's plea to allow them to appoint an Expert Committee for the purposes of investigating the allegations, as such a course of action would violate the settled judicial principle against bias, i.e., that justice must not only be done but also be seen to be done."

'National security' cannot be a mere bugbear that the judiciary shies away from, by virtue of its mere mentioning: Supreme Court

Another aspect of the Supreme Court order which has been a cause of much celebration is its observation that "the Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns....the mere invocation of national security by the State does not render the Court a mute spectator."

It may be noted that during prior hearings, Solicitor General Tushar Mehta had argued before the Bench that the instant matter was related to national security, and hence cannot be made a subject matter of a judicial debate or public discourse. He had further expressed the Centre's unwillingness to file any additional affidavit divulging whether the Centre had used any particular software for security purposes by citing concerns of national security.

The Apex Court has made it very clear that while the scope of judicial review is limited when it comes to issues of national security, "this does not mean that the State gets a free pass every time the spectre of "national security" is raised...no omnibus prohibition can be called for against judicial review."

This can be seen as a marked departure from previous instances where the invocation of a blanket 'national security' argument by the government has stone-walled any inquiry at the preliminary stage itself. Claiming a blanket exemption on the grounds of 'national security' was problematic not only from the perspective of the fundamental rights of the citizens but also from the evidentiary point of view.

As Justice Gupta points out- "we've had the Evidence Act for ages. The government has the right to claim privilege and say that we will not disclose certain documents. There's a set procedure of claiming privilege, a Secretary to the Government has to file an affidavit to the court and these are the reasons to be given...you can't just say 'national security'. I can understand, as very rightly put in the judgement, national security is something even the judges are concerned about...The judiciary is also responsible for the sovereignty and unity of the country but you must place material before the court to show how national security is affected."

Vrinda Bhandari from Internet Freedom Foundation too points out that this is a significant observation of the order. The court's observations about the need to substantiate national security averments and that "a ritualistic incantation of national security is not enough and the government will have to provide some basis or documentation to substantive their averments" will have a larger impact extending far beyond the Pegasus matter, she feels.

The Apex Court's order too reiterates this point by noting that-"national security cannot be a mere bugbear that the judiciary shies away from, by virtue of its mere mentioning." It is hoped that with this matter, the practice of claiming 'national security' as a blanket exemption is done away with.

Justice Gupta feels that the government was probably "ill-advised" in this matter. Elaborating on his line of thought he says, "they thought they could bludgeon the court like they'd been doing earlier that we say this and the court will accept it. If they had followed the law which allows surveillance and if they had followed the law and the committee that sanctions surveillance of telephone had been formed they could've easily said, yes, we are using Pegasus….But they'd have to tell the Supreme Court that okay we have a list of people and we will only disclose it to the judges and these are the reasons why we don't want to disclose it in the larger public domain. I think that would've been much better. But sometimes they just dig their heels in and they've asked this committee for themselves."

That the government has asked this committee for themselves in a sentiment that the Apex Court too echoes in its order. It notes- "despite the repeated assurances and opportunities given, ultimately the Respondent­-Union of India has placed on record what they call a 'limited affidavit', which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand. If the Respondent-­Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different."

One can hope that the Pegasus order paves the way for a determinate standard being laid down by the court specifying the circumstances and limitations of the 'national security' argument adopted by governments. However that hope is a little premature in a sense. The question of whether or not the government can claim a 'national security' defence depends on the committee findings on the preliminary question for examination whether or note the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information etc. The task for the committee foremost is a factual determination of spying and then secondly, if any, of the legal question that under what law, rule, guideline, protocol or lawful procedure was such deployment made and whether such use was authorised. As Justice Gupta perceptively points out- "What recommendations the committee ultimately comes up with depends on the finding..for all we know there may not be any illegal tapping or there may be tapping but of people who tried to dismember the country which the committee may not want to be out in the domain."

Terms of Reference of the Committee are very comprehensive and we feel like justice has been done: N Ram

That Terms of Reference of the Committee are broad in nature has brought cheer from different sections of the society. Apart from being tasked on the factual question of spying and the illegality of the action, if any; it has also been empowered to come up with recommendations regarding amendments to existing laws and enactments; establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices;setting up of a well equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country, among others. N.Ram expressed his pleasure at the broad Terms of Reference of the Committee. He specifically points out that the Committee has been empowered to make any ad-hoc arrangements as an interim measure for the protection of citizens rights and fill up lacunae by the Parliament. "This is very comprehensive and we feel like justice has been done," he adds.

While the Terms of Reference of the Committee are very broad in nature, giving the Committee the necessary leg-space to make findings and recommendations as it deems best, a common refrain that has been expressed is that much of the success of the Committee would depend on how much the government cooperates. "The worry is whether the government will cooperate with the committee," as Justice Gupta puts it.

Like the question of governmental cooperation, another issue that has been on everyone's mind has been- What next? If at all the Committee comes to a conclusion that the software was misused to spy on ordinary citizens and that there was no 'national security' justification, what would be the 'remedy' is a question that is on everyone's mind. Justice Gupta hints that there could be a number of 'remedies' at the Court's disposal. "The court can order even a higher-level enquiry, it can order compensation to be given, it can order disclosure of documents." But, as Justice Gupta, is quick to point, everything is mere speculation at this point.

Regardless of the exact findings of the Committee which has been set up, whether or not the government cooperates with the Committee, what recommendations it comes up with and what the implications of an adverse finding would be, the sentiment everyone seems to share is that the Court's order is a historic opportunity to act as a check on the infringement of citizen's right to privacy and the freedom of the press. Not just the activists or journalists but every citizen of the country as the order rightly emphasises.

"Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy." Supreme Court

Apar Gupta of the Internet Freedom Foundation, feels that "the order and the exercise is an important step on the issue of accountability and remedy." Further, he hopes that this exercise can be a platform to harmonize the standards that the Apex Court has previously laid down in PUCL v Union of India (1997), Puttaswamy (I) and Puttaswamy (II). Justice Gupta too feels the order "After three of four years this (the order) has come as a breath of fresh air." Views are expressed privately that the order reflects a starting point of a change of stance in the judiciary toward issues of privacy, surveillance and national security. As Senior Advocate Dushyant Dave recently said in an interview with The Wire, "the Supreme Court has clearly and categorically stood with the citizens of India..it has told the government enough is enough..the Supreme Court has said we are here as watchdogs." For N.Ram, one of the petitioners in the case, getting to the truth of the matter is of utmost importance.

"Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights" Supreme Court

Maybe the order can be seen as an instance of a more proactive judiciary that stands up for the rights of the citizens of the country in upholding the principles of accountability and transparency. Or it should be seen as an instance of the judiciary exercising its role of 'checks and balances' that is so essential to a democracy. As Justice Gupta puts things in perspective, "One doesn't have to gun for the government but at the same time we shouldn't be cowed down by the government. There has to be a balance...We must respect the government. In a constitution where we have a system of checks and balances, we must respect each other. But as I've said many times before I feel very uneasy when everything moves too well-oiled and there is no friction. There must be some element of friction between the state and judiciary."