Pegasus Case: Way Forward for India’s Democracy

INTRODUCTION

The long awaited decision of the Supreme Court in the Pegasus controversy was finally pronounced a few days ago. The Supreme Court constituted a technical committee of three members, including those who are experts in cyber security, digital forensics, networks and hardware, the functioning of which will be overseen by Justice R.V. Raveendran, former Judge, Supreme Court of India to investigate the alleged cyberattack incident. Before diving into the responsibilities of the committee, a brief understanding of the Pegasus debate has been produced below for reference.

WHAT IS PEGASUS?

“Pegasus” is a spyware suite produced by an Israeli technology firm called the NSO Group. In 2018, a Toronto based laboratory released a report indicating that the software capabilities of Pegasus is suspected to have affected nearly individuals from 45 countries including India. The software allegedly has the capacity to infiltrate a digital device without any action from the owner of the device. Once the device is infiltrated, administration of Pegasus can allegedly remotely access the data therein including emails, text messages, call recordings etc.

WHY IN NEWS ?

According to the official website of NSO group, the Pegasus software is primarily sold to government agencies for prevention and investigation of terrorism and crime. In July 2021, a group of journalists from around the world released a report alleging the use of Pegasus software on several private individuals. According to the report, 300 of the leaked numbers from a total of 50,000 numbers throughout the world were of Indian origin, belonging to senior journalists, doctors, politicians and even some court staff members. The release of the report triggered widespread criticism against the Indian government’s lethargy on taking appropriate action to prevent breach of privacy of its citizens. Many pointed out that, given the clientele of the NSO Group (Government agencies), Union of India may be an accomplice to the cyberattack on its citizens. In this regard, the victims of the cyberattack pleaded before the Supreme Court, that the Union of India, being one of the suspects in the cyberattacks, should not be ideally conducting the investigation and an independent probe into the alleged incident was requested to be conducted by retired judges of the Supreme court and High courts.

RIGHT TO PRIVACY

The Supreme Court in K.S. Puttaswamy v. Union of India^[1], acknowledged that “the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy”. The Supreme Court has also acknowledged that the right to privacy, like any other fundamental right, is not absolute. The State, whenever required to maintain security, may be justified in encroaching upon the right to privacy of its citizens, after passing the necessary constitutional scrutiny. Having said the above, the State’s responsibility to protect the privacy interest of individuals must be balanced with the competing interest of maintaining security. Several renowned constitutional law experts throughout the world maintain that surveillance or spying on an individual directly infringes his/her right to privacy. The threat of being spied on, may lead to self-censorship, particularly affecting freedom of press, which is a pillar of any democracy. With the increase in the sedition and criminal cases against journalists and activists, killing the spirit of democratic dissent in the last few years, the Government’s inaction towards the preventing the cyberattacks through the Pegasus spyware seems like a final blow on several democratic institutions responsible to maintain checks and balances.

SUPREME COURT ORDER

The Supreme Court’s order in the Pegasus matter provides great relief to the victims of the alleged cyberattack incident. Contrary to the prayers of the Union of India, the Supreme Court has formed an expert technical committee to investigate the rights’ infringement by appointing a retired Supreme Court judge as its chairman. The Supreme Court noted that the allegations against the Union of India being a party in the alleged cyberattack, plays a huge role in not allowing the government to investigate the matter. Such a course of action would violate the settled judicial principle against bias, i.e, ‘justice must not only be done, but also be seen to be done’. The technical committee will be responsible for investigating whether Pegasus spyware is being used on Indian citizens and if yes, the details of the victims of the cyberattack. The committee will also be investigating whether Union of India has bought Pegasus spyware from the NSO group and make recommendations for establishing an independent premier agency to prevent cyberattack vulnerabilities.

CONCLUSION

The order is being considered as a sigh of relief among the dissenting population of the democracy. For the moment, it restores faith in the Apex Court of the country and conveys the underlying message that free speech and expression are values of paramount importance in a democracy and cannot be sacrificed at any cost. Unlike several western governments, Union of India has not engaged in any diplomatic conversation to investigate the incident with the Israeli Government till date. The Supreme Court order subtly indicates that the government’s denial of the cyberattacks and lethargy in investigation of the same, would not be taken lightly in further decisions of the Court in the matter. Overall, the scope of being optimistic towards the freedom of speech and expression as well as the democratic situation of the country has significantly increased after a long time.

^[1] (2017) 10 SCC 1