PM Modi faces ‘Watergate moment’ if SC’s Pegasus probe panel establishes his govt indeed deployed the spyware

SC rejected Modi govt's contention that Pegasus spyware was a ‘national security’ issue, a line of argument it successfully deployed to defuse judicial challenge to its purchase of Rafale jet fighters

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Rahul Gul

The constitution of an independent three-member committee headed by retired SC judge Justice R.V. Raveendran and comprising two other domain experts to look into the Pegasus issue by the Supreme Court on Wednesday is a noteworthy and consequential development which may well land the Modi government in a thorny political and legal position at a critical juncture when several states, including the all-crucial Hindi heartland of Uttar Pradesh, are due to go to polls.

In doing so, the SC has emphatically and unequivocally rejected the government’s contentions during the hearing which essentially amounted to asking the apex court to back off since it was a ‘national security’ issue, a line of argument it was able to successfully deploy to defuse the judicial challenge to its purchase of Rafale jet fighters.

“National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning,” the court said. Security of State is definitely one of the grounds which allows Union of India to decline from providing information, the court conceded. "However, this does not mean that the State gets a free pass every time the spectre of 'national security' is raised," it emphasised.

The court noted that the Centre did not take a clear stand and made no specific denial on the allegations made by the petitioners. "There has only been an omnibus and vague denial in the 'limited affidavit' filed by the Respondent-Union of India, which cannot be sufficient," the court said. In such circumstances, we have no option but to accept the prima facie case made out by the petitioners to examine the allegations made, it said.

The court also made several other key observations:

Citizens’ right to privacy: “Privacy is not the singular concern of journalists or social activists alone and every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom,” the Bench said.

Test of constitutionality: As with all other rights, right to privacy is also subject to reasonable restrictions; however, any restrictions imposed must necessarily pass constitutional scrutiny, the court held. “In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution," it said.

Chilling effect of surveillance on the press: The court said that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship. "This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech 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," it said.

Foreign entity spying on Indian citizens: The court also took serious note of the petitioners' contention that a foreign entity may have spied on Indian citizens. The possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance weighed with the court in ordering an expert committee probe.

The terms of reference of the committee are fairly broad, empowering it to get to the bottom of some basic and all too obvious questions that the government stubbornly refused to answer not only in the SC but even in Parliament despite no-holds-barred protests by the Opposition: Was the Pegasus suite of spyware acquired by the Centre or any central agencies? Was it deployed against Indian citizens? The details of victims and persons affected by such a spyware attack, etc.

If the committee goes on to deliver an affirmative answer to these questions, it would put Prime Minister Narendra Modi and Union Home Minister Amit Shah in an awkward position, to put it mildly, since common sense dictates that orders to procure the Israeli spyware – ostensibly a 'government-to-government' deal which incidentally entails expenditure of millions of dollars to target a select number of phones – and deploy it on Indian soil could only have come from the PMO or MHA with their explicit approval.

That is, however, a big ‘if’, in view of the huge stakes involved for the ruling regime, which has been accused all too often of not being averse to employing all sorts of machinations to get the results it wants when faced with adverse political situations and fallouts.

At the end of the day, the committee members are but human beings residing in the country, who can't possibly be immune to immense pulls and pressures they might come under.

The probe panel is scheduled to submit its report to the Supreme Court after eight weeks, that is, by the end of December, after which, in theory, a hearing will take place. Since the SC is closed for winter vacations in the last week in December, such a hearing can take place only in early January 2022, just around the time political campaigning in the states going to polls begins to gather steam. The Pegasus issue could certainly, then, be used as a major issue by the Opposition in the polls to go after the BJP.

However, going by history and precedence, the possibility of the committee seeking more time to submit its conclusions on one ground or the other can hardly be ruled out. Without going into details, there have been instances when such committees took forever to submit a report, stretching their remit by years on end.

All the same, the setting up of the committee by the SC is a huge setback for the Modi government. It bears to recall that in 1972, the Watergate scandal, which too involved spying on the opposition and tampering with official documents, had led to a huge controversy in the United States, with two leading journalists of the time pursuing the scandal doggedly. Eventually, there was no escape route left for President Richard Nixon and he was forced to put in his papers.

If the probe panel concludes that people at the highest echelons of power were indeed responsible for indulging in wanton espionage on citizens of the country through the Pegasus spyware for reasons that had nothing to do with national security, the Supreme Court could well consider it as an attack on the fundamental rights of citizens and take the government to task.

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    Published: 27 Oct 2021, 10:03 PM