Pegasus case: Upholding citizens’ right to privacy

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October 28, 2021 5:00 AM

SC’s concern is seen in its insistence on an independent panel to probe Pegasus episode

The SC intends to make sure the investigation is thorough; it has rejected the Centre’s suggestions for a committee, and has gone out of its way to select a crack team, headed by former SC judge Justice RV Raveendran and comprising experts on cyber-security and criminal investigations.The SC intends to make sure the investigation is thorough; it has rejected the Centre’s suggestions for a committee, and has gone out of its way to select a crack team, headed by former SC judge Justice RV Raveendran and comprising experts on cyber-security and criminal investigations.

Wednesday’s Supreme Court order in the Pegasus matter is a landmark one for the importance that it accords to the right to privacy of individuals and to free speech. The actions of the SC will not merely address the immediate purpose of getting to the bottom of the Pegasus spyware issue, but will also serve as guidance in the future. The apex court is so concerned citizens could be impacted due to the ‘potential chilling effect’ of surveillance, it is paving the way for legislation to prevent this. Indeed, with the privacy laws not having seen the light of day, the SC appears to have taken upon itself the responsibility of ensuring that all Indians are protected against the violation of privacy.

In their order, Chief Justice NV Ramana, Justice Surya Kant, and Justice Hima Kohli, noted that it was undeniable that surveillance and the knowledge that one is under the threat of being spied on could results in self-censorship and that this was of particular concern when it related to the freedom of the press. It could, they observed, undermine the ability of the press to provide accurate and reliable information. With the government stonewalling queries on the alleged of the use of spyware Pegasus to snoop on ordinary citizens, the bench regretted it has been left with little choice but to order an independent probe.

The SC intends to make sure the investigation is thorough; it has rejected the Centre’s suggestions for a committee, and has gone out of its way to select a crack team, headed by former SC judge Justice RV Raveendran and comprising experts on cyber-security and criminal investigations. What is important is that the committee’s remit goes beyond investigating the current episode. It has been tasked with preventive maintenance; it must recommend how existing legislation can be amended—or new laws framed—on surveillance so as to ensure better privacy rights.

The SC is working to make sure citizens have adequate protection on privacy. This could also be perceived as a nudge to the Centre to move on the data privacy law which has been in the making for years now. Indeed, the SC goes to the extent of asking the panel to suggest an “ad hoc” arrangement that may be made by the SC, as an interim measure to protect citizens’ rights, pending filling up of the lacunae by Parliament. In particular, the committee must come up with measures to ensure that citizen’s right to privacy is not invaded, by the state or non-state entities, except if the law requires it.

As the court pointed out, the Centre not just failed to make clear its stance on the issue, it has also not specifically denied the contentions of the petitioners, providing an “omnibus and vague denial” in the limited affidavit filed by it. Given it is now two years since the first alleged Pegasus spyware attack—in 2019, it was alleged that devices with WhatsApp were breached due to a vulnerability in its software—the government needed to have been more forthcoming. The SC has been right to dismiss the government’s claim that such information, if in the public domain, could be used by terror groups and would jeopardise national security. It is no one’s case that national security be compromised and the Centre is well within its rights to use technology for surveillance purposes. But invasion of privacy of individuals is a serious matter.

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