Context

The Supreme Court of India appointed an independent committee to inquire into charges that the Union government had used the mobile phone spyware Pegasus to invade, access, and snoop into devices used by India’s citizens.

Background

• The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media.
• These reports revealed that hundreds of phone numbers from India had appeared on a global list of more than 50,000 numbers that were selected for surveillance by clients of the Israeli firm, the NSO Group.
• The NSO has since confirmed that its spyware is sold only to governments, chiefly for the purposes of fighting terrorism.

Government’s defence

• In response to the allegations made against it, the Government invoked national security.
• What is more, according to it, the very adoption of this argument virtually forbade the Court from probing further.
• In matters purportedly involving national security, the Court has shown an extraordinary level of deference to the executive.
• The cases also posed another hurdle: a contest over facts.
• The petitioners were asserting the occurrence of illegal surveillance.
• The Government was offering no explicit response to their claims.
• Now, to some degree, in its order appointing a committee, the Court has bucked the trend of absolute deference.
• The Court has held that there is no magic formula to the Government’s incantation of national security, that its power of judicial review is not denuded merely because the state asserts that the country’s safety is at stake.

Accountability on part of the government

• The order recognises, correctly, that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy.
• This is not to suggest that all surveillance is illegal.
• In holding thus, the Court has effectively recognised that an act of surveillance must be tested on four grounds:
• First, the action must be supported by legislation.
• Second, the state must show the Court that the restriction made is aimed at a legitimate governmental end.
• Third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective;
• Finally, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.
• The test provides a clear path to holding the Government accountable.

Way forward

• The absence of a categorical denial from the Government, the order holds, ought to lead to a prima facie belief, if nothing else, that there is truth in the petitioners’ claims.
•  Having held thus, one might have expected the Court to frame a set of specific questions demanding answers from the state.
• If answers to these questions were still not forthcoming, elementary principles of evidence law allow the Court to draw what is known as an “adverse inference”. 
• A party that fails to answer questions put to it will only risk the Court drawing a conclusion of fact against it.
• If, on this basis, the petitioners’ case is taken as true, there can be little doubt that there has been an illegitimate violation of a fundamental right.
• It is, therefore, unclear why we need a committee at all.
• Ultimately, in the future, the Court must think more carefully about questions of proof and rules of evidence.

Conclusion

Ad hoc committees — sterling as their members might be — cannot be the solution. Far too many cases are consigned to the back burner on the appointment of external panels, and, in the process, civil liberties are compromised.

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