Surveillance A Threat To Democratic Society: An Analysis Of Indian Supreme Court's Order In Pegasus Case

Pegasus spyware is developed by the Israeli cyber firm NSO, it has targeted hundreds of phones in India, the spyware can enter the device of the targeted person without even their knowledge, this is because it is designed in such way that it can impersonate itself a downloaded application in the phone and transmit itself through the notification via the application's server. There are complaints from different users about the cracking of their mobile phone through this virus.

The Supreme Court in its October 2021, has led to an effective step to protect the citizens from unlawful; surveillance to protect their fundamental right to privacy, the Supreme Court also stated that protection of Journalistic interventions as it is an essential condition of Freedom of Press, and if this is not followed then there would be a significant loss to the citizens of India as it would hamper the process of providing safe and authorized news to the citizens.

Surveillance: Violation Of Individuals' Right

The court took a strong stand against the surveillance on individuals and said that in a democratic society spying on individuals cannot be allowed except by following due procedures established in the constitution with sufficient statutory safeguards.

Unlawful surveillance affects a society at large and violates major rights that an individual has. First and most important right that is violated is that of privacy because major requirement of privacy right is to be free from observation, interference, and intrusion; surveillance violates privacy in multiple ways this is because we are under a continuous observation and under the Article 21 of the Indian Constitution an individual is provided an integral and fundamental right, Right to Privacy.

Unlawful spying also violates right to freedom of speech and expression, protected by the Indian Constitution under Article19(1)(a), it's because surveillance submits us under the government authorities and it impacts the way in which people thinking and communicate with other about their opinions on social and political issues and it restricts the flow of important information in the society because many things get censored or there are chances that citizens don't speak up their minds in fear of getting caught by the state authorities.

These aspects of surveillance poses a major threat to the security of citizens, as it increase the threats of blackmail, spread of false information, manipulated and discriminatory profiling of issues.

Journalism: Indispensable Part Of Democracy

Media is considered as the fourth pillar of democracy because of the major role it plays in shaping the opinions of individuals in the society, Journalists are some of the people who very closely view working of the government, how the society works, latest happenings in the judiciary, and many times normal citizens don't have a direct access to all these things and they get all the information through a media, which plays a major role in the way a society thinks and forms a perception about a particular issue.

Supreme Court in its order kept the freedom of press, an essential part of the democracy in mind. The court noted that protection of journalistic sources is one the integral part of freedom of press, as without proper protection such sources may dissuade the press in providing legitimate information to the public on matters of public interest.

Surveillance forces the Journalists to act like what the spies want which deviates them from the actual issue and responsibility that they have towards the society. The main element of Freedom of Press is noninterference from the government or its agencies and this surveillance is presumed to violet this arena of Freedom of Press.

Gorge Orwell's Reference In The Court's Oder: A Negative Connotation Towards The Government

Supreme Court bench cited a quote from George Orwell's 1984 novel "If you want to keep a secret hide it from yourself." Reference of this quote is very insulting for any state and working of its government, this because the book 1984 is about a state where everyone is suppressed and it revolves around the theme of government surveillance, mass media control and dictatorship and how it controls the thoughts and lives of its citizens and there is no way for the people to escape this affliction.

The main reason for the formation of the committee is to find the answer to the question if the government has bought the Pegasus Spyware, which the government is escaping in the name of National Security so they avoided to talk about the spyware, the other reasons were violation of most important human right that is right to privacy and other freedom of press in India because there are reports mobiles of around 40 journalists were targeted in India.

In France, Paris when there where apprehensions of surveillance through Pegasus within two days the investigations were started but in India the government did not even speak about it in the name of National Security.

International Laws That Are Applicable In This Situation

Human Rights are the most important rights, which are made on the fundamental principle to bring freedom, justice and equality, and peace in the word, and The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on December 10, 1948 and The International Covenant on Civil and Political Rights came into force on March 23, 1976. Both these Human Rights organizations are applicable around the world.

Article 12 of the Universal Declaration of Human Rights protects and Article 17 of the International Covenant on Civil and Political Rights, protect promotes the privacy of the individuals' it clearly states that no unlawful or arbitrary interference with the privacy of an individual and that the individual has right to the protection of against any such interference.

The International Covenant of Civil and Political Rights, in 1988 stated that state surveillance should be subject to legality through laws, and that law should be congruent and must safeguard the Right to Privacy.

The article19 under The Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights and Article10 under the Equality and Human Rights commission protects Freedom of Expression; it protects your right against any governmental interference in freely forming and expressing opinions. This right is of utmost importance to journalists and people associated to the media fraternity.

The order to form a committee to investigate whether the Pegasus spyware was used in the devices of Indian citizens for surveillance is a reasonable towards to protection the fundamentals of privacy and freedom of speech of Indian citizens.

The policy makers will then work on the recommendations suggested and make a stronger framework around the privacy laws and cyber security to uphold the citizen's fundamental rights.

Views are personal.

Author is a First Year Law Student at NALSAR