India's privacy test

The new committee can address all issues

The Supreme Court’s decision to appoint an independent committee of three experts under the oversight of retired Justice R V Raveendran to investigate the Pegasus spyware case is a step in the direction to protect fundamental rights. The committee has been entrusted with a great responsibility. The 12 petitions admitted by the court allege the violation of the fundamental rights to privacy and freedom of speech, along with averring the government has been party to such violations, and involved foreign entities in surveillance of Indian citizens. Moreover, the government has not denied any specific facts averred by the petitioners. According to the order, it has instead invoked national security, which is not in itself enough to make the court a “mute spectator”.

The committee has been asked to submit its report “expeditiously” with the next hearing in eight weeks. All three technical experts are academics with backgrounds in computer science and cyber security. The committee has wide terms of reference and remit, and it may call upon any person, or the records of any authority or individual. It has been asked to determine if Pegasus was used to snoop on Indian citizens; if so, who were the targets; what steps have been taken by the Union of India after reports of surveillance appeared; if Pegasus was deployed by the Centre, or any state government, or any government agency, was such deployment authorised. It may make recommendations about amending existing laws to improve protection for the right to privacy; for enhancing India’s cybersecurity; recommendations about the establishment of a grievance redress mechanism for citizens who suspect being targets of illegal surveillance; the establishment of a new cybersecurity agency; and any ad hoc arrangements that could enhance privacy until the passage of appropriate laws.
 

This is a formidable task in practice, given little time and the technical complexity of Pegasus, and the need to examine records and call upon senior government officials or ministers for testimonies. The government’s initial “limited affidavit” on the issue contained only a “vague denial” and it is possible the committee will find its enquiries met by further stonewalling. However, the very fact that the apex court has opted to form and empower a committee in this manner is a positive signal. Apart from determining the facts in the case, the committee has been asked to recommend grievance redress mechanisms and indicate interim options to offer greater protection to the fundamental right of privacy, and the associated right of freedom of speech. 

One of the problems, which this order takes note of in passing, is the unconscionable delay in the passage of specific legislation to ensure the data protection and privacy of individuals. It is over four years since the Supreme Court upheld the fundamental right to privacy, and more than three years since a committee headed by retired Justice B N Srikrishna drafted legislation in this regard. Not only has that draft not been presented to Parliament, the legislation has been redrafted to dilute protections and offer sweeping powers of data collection and surveillance to government agencies. The lack of a grievance redress mechanism and of specific legislation also makes it impossible to punish violations of this fundamental right. The Pegasus case is a classic example of the harm, and the chilling effect caused by such delays and dilutions. The committee has the chance to start the process of setting things right.