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Pissed over Pegasus: National security as fig leaf

A. J. Philip A. J. Philip
01 Nov 2021

Aristotle, the Greek philosopher, said, “At his best, man is the noblest of all animals; separated from law and justice, he is the worst”. He could not have phrased it better. When man turns worse, it is the job of the criminal justice system to either turn him around or punish him so that no one else is adversely affected. The role the judiciary plays in a civilised society cannot be underestimated, except at the society’s own peril.

If the judicial system is strong and it can withstand political and executive pressures, there is nothing to fear. It does not matter whether the ruler is the late Indira Gandhi or Narendra Modi if the judiciary can uphold the provisions of the Constitution, i.e., the rule of law. Alas, whether it was about the citizenship law, the abrogation of Article 370, the effacement of Jammu and Kashmir as a state of the Indian Union and the farm laws, the apex court began to act like a handmaiden of the government.

One of the Chief Justices, who was accused of moral turpitude, was so brazen in saying hallelujah to the government, that he even gave a verdict in one of the most sensational cases the court ever handled without letting the world know who exactly drafted the verdict. Within days of delivering a judgement the political leadership wanted, he accepted a lucrative and influential position as a member of the Rajya Sabha.

It is not the decisions and actions of persons like Narendra Modi or Amit Shah or Yogi Adityanath that the people fear because they know that there is a judicial remedy for their highhanded ways. What they really fear is the reluctance of the courts to hear such cases, for they know that there is no redemption in such a situation. 

A few years ago, when the Uttarakhand government was dismissed, the High Court showed remarkable independence when it turned down the Presidential decision and restored the government. Of course, the judge concerned had to pay a price for his decree. It is this trend that has been causing concern to the common people. 

If, even the apex court can’t take impartial decisions on the merits of a case, the Constitutional rights the people enjoy will stand compromised, sooner than later. Fortunately, one can see a reversal of the trend like in the Pegasus case. 

I had looked closely at the Pegasus issue in a column a few months ago. Pegasus, the name of a mythical horse, is a spyware developed by a private Israeli company. It can be used to access all the details contained in a mobile phone. In the Aryan Khan drug case, the first thing that the Narcotic Control Bureau (NCB), headed by Sameer Wankhede, who is sometimes a Muslim and sometimes a Scheduled Caste Hindu, did after he was arrested was to seize his mobile phone.

The law does not allow the NCB to forcibly take a person’s phone. It forced him to open the chat history. They found that he had chatted with his girlfriend about two years ago. There were references to their drug use. The chats were used by the NCB to deny bail to Aryan Khan, though they could not find even a spec of the banned substance on him. 

They purposely did not subject him to a medical examination for it would have revealed that he had not consumed any drug. It would have weakened the NCB case.

Once Pegasus is set in motion on a person’s mobile phone, the agency can access all the chats, all the conversations and all the documents, including texts and photographs, he or she shared with others. Because of Pegasus’ capabilities, there is a law in Israel, under which the company can sell it only to governments or government institutions like the Police. 

The world came to know about Pegasus when in November 2019, a tech reporter from New York City photographed an interception device displayed at Milipol, a trade show on homeland security in Paris. The exhibitor, NSO Group, placed the hardware at the back of a van, perhaps suggesting convenience of portability, and said it would not work on US phone numbers, possibly due to a self-imposed restriction by the firm.

Later, it was revealed that Pegasus was used to tap hundreds of phones in India. Since the Israeli law prohibits the NSO Group from selling Pegasus to private parties, it was obvious that it sold the licences to the Indian government. 

The licences did not come cheap. The government had to shell out a lot of public money to use Pegasus. One can understand the government using the software on the telephones of terrorists and anti-social elements.

Far from that, they were used against political leaders, government officials, academics, judges and journalists, i.e., people who would not in ordinary circumstances do anything prejudicial to the interests of the nation. When the first Pinarayi Vijayan government entered into an agreement with Sprinklr, a data management company owned by an American of Kerala origin, the government was criticised by one and all.

They argued that the data gathered from Kerala could be used for commercial purposes by Sprinklr. True or not, the government was forced to wriggle out of the agreement. The Narendra Modi government does not bow down to criticism. Nearly 700 farmers lost their lives while protesting against the three farm laws but the deaths have not moved the government a wee bit. A Union minister’s son allegedly mowed down four farmers but the minister still remains in power.

In the case of Pegasus, too, the government was not willing to open its mouth. Far from admitting that it bought the licences from the NSO Group and used it to gather intelligence, it has been giving evasive replies.

Like patriotism is the last refuge of the scoundrel, national security is the last refuge of the Modi government. It uses the magic wand of national security to deny information. Though Modi had promised transparency when he came to power, he has been most opaque. Pegasus is a classic example of his government’s opacity.

When many public-spirited persons approached the Supreme Court and the court took cognisance of their petitions, the government had an opportunity to come clean on the Pegasus issue. But it preferred to remain adamant and not share any details with the court.

The affidavit it filed hid more than it revealed. The tactics it adopted was nothing but obfuscation. It got another opportunity to make amends but it continued to behave like an obstinate child.

As is its wont, the government took shelter under the umbrella of national security. Fortunately, the SC Bench, headed by Chief Justice, Mr Justice NV Ramana, were made of sterner stuff and they decided to have the whole Pegasus question inquired into by a former judge of the same court, Mr Justice RV Raveendran, to be assisted by subject experts. By rejecting the government offer to constitute a committee, the court has ensured that Mr Justice Raveendran and his staff would not be beholden to the government and is answerable only to the apex court.

An inquiry can never be more independent than the one the court has ordered. A BJP spokesman has wasted his time to claim that the idea of an independent inquiry was the government’s own. The fact is that the Supreme Court has given the government a body blow from which it will take months, if not years, to recover. For once, the government realises that judges can indeed be a thorn.

While ordering the inquiry, the court has underlined certain cardinal principles of law. One is regarding the right to privacy. In one of its own earlier judgments, the court had said, “the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy”. The only state where the right to privacy was totally non-existent was the one which George Orwell graphically portrayed in his great novel Nineteen Eighty Four.

In the Orwellian state, the Big Brother has his eye everywhere and he even watches every couple in the country making love. Pegasus, when it is unleashed, is like the contraption the Big Brother had installed in every home. It does not leave the phone user with even the proverbial fig leaf to cover his or her nakedness. 

This does not mean that a terrorist has the right to make a bomb in the privacy of his bedroom. In other words, Pegasus can be used against him in the public interest.

To be legal, any restrictions on an individual’s right to privacy “must necessarily pass Constitutional scrutiny”. The court has drawn a link between surveillance, especially “the knowledge that one is under the threat of being spied on”, and censorship, particularly self-censorship, to reflect on the “potential chilling effect that snooping techniques may have”. 

It 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”. Significantly, some of the persons against whom Pegasus was unleashed were journalists!

The court has, for once, rejected the argument that “national security” is an omnibus doctrine that can be invoked to refuse information on anything and everything. It was in the name of “national security” that Fr Stan Swamy was arrested and sent to jail where he remained till his untimely death. In fact, most official crimes are committed in the name of this doctrine. 

As I write this, I have in front of me today’s newspaper which reports about two Muslim boys in Kerala against whom UAPA was invoked to keep them in jail. They were alleged to be Maoists. The Supreme Court did not find anything in the case history to warrant invocation of the dreaded law. There was nothing in the records to suggest that they tried to strengthen the activities of any banned organisation.

The judgement is a strong rebuttal of the government’s specious and self-serving use of national security as an alibi, a catch-all phrase used these days to criminalise all forms of dissent. The court ruled that the state does not get a “free pass every time the spectre of “national security” is raised". This also means that “no omnibus prohibition can be called for against judicial review”. In short, the government will have to explain — and convince — the Court why it wants to avoid disclosure. 

If the court, which heard Fr Stan Swamy’s case, had asked the police why they did not question him even for a minute after he was arrested and sent to remand, ostensibly for questioning, it would have found it necessary to release him.

Equally important, what guarantee is there that the Israeli company would not pass on the information to third parties or governments. All these questions will be addressed by the Justice Raveendran Committee. It has been given two months to complete the job. Whatever the requirements of the Committee are to complete its job, they must be provided by the government, as per the order. One can only hope that it would not come under any influence, political or executive.

As a jurist once said about an American judge, “I don't believe we need a good conservative judge, and I don't believe we need a good liberal judge. I subscribe to the Justice Potter Stewart standard. He was a justice of the Supreme Court of the United States. And he said the mark of a good judge, good justice, is that when you're reading the decision, the opinion, you can't tell if it's written by a man or a woman, a liberal or a conservative, a Muslim, a Jew or a Christian. You just know you're reading a good judicial decision”.

Let’s hope that Justice Raveendran’s report on Pegasus will conform to the Potter Steward standard. The whole country has its best wishes for the trio who will set standards of ethics for the government to follow.

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