Pegasus Leak: A Threat To Democracy?
Authors: Samanvi Narang & Sunidhi Setia
Designation: Academic Tutors and TRIP Fellows, OP Jindal Global Law School
“The greatest threat to democracy lies within democracy.”
- Nimushakavi Vasanthi
Pegasus leak broke the biggest story after the Covid-19 outbreak, scarring the history of democracy. The software that could snoop into a mobile phone by exploiting bugs in smartphones without consent has been allegedly purchased and used by the Indian Government. It not only tracks the owner through GPS without his consent and knowledge, but also turns the infected smartphone into a device, recording/filming any conversations with the help of a microphone and the camera.
Before we discuss what, we shall deal in this article, let us tell you, what we shall not. It is not to raise the questions that should have been long answered and resolved! Certainly, not what should have been done! And definitely not to discuss ways to avoid such controversies! This article is a simple attempt to question the questioned and the unquestioned. We question the political circumstances within which the Government of India has responded to the allegations and, question the attack on the already weakened democratic pillars.
Israel based NSO group, claims to have sold the software to only ‘vetted governments’, with an objective to resist cybercrimes and terrorism worldwide. Albeit the scandal that allegedly reported spying on journalists, bureaucrats, judicial officers, advocates and even members of parliaments for general surveillance has pushed us to further question India’s journey towards maintaining the tenets of her constitutional democracy.
While the Government's reaction has been two-fold, it is interesting to note the politics behind this reaction. Conspiracy theorists say that this is a move to discredit the Government of India. The minute after the IT Minister called the revelation ‘an attempt to malign the Indian Democracy’, it was pointed out that even he was not immune from the spyware. Further, using the statutory provisions, the Government also stated that all interceptions that happen in the country are within the boundaries of procedure established by law. Curiously, what the Government has not said can be found in its long-drawn commitment to continue to do what it has been doing. In 2019, when WhatsApp had alleged intrusion by this spyware before a US Court, the then IT minister had diplomatically diverted the Parliament floor to the ‘governance dilemma’ of choosing privacy or security!
Ideally, any government’s conduct must be as transparent and accountable as is embedded in our constitutional history. However, under the garb of due process of law, the Government has been conveniently legitimizing their actions and reactions. The legislative framework that governs such attacks has been used at the Government’s disposal. Section 5 of the Indian Telegraph Act, 1885 empowers the Government to intercept telephonic records only for the purposes of security, sovereignty, and integrity of the nation. The landmark judgment of PUCL v. Union of India (AIR 1997 SC 568) laid down ‘strict guidelines’ to establish procedure for use of taping. This paradox of ‘strict guidelines’ could only be mitigated by the Government making rules. By no means are we undermining the importance of surveillance for national security and integrity with everything going digital these days. Albeit it is equally important to question ‘surveillance’ like these to not go in the boundaries of ‘espionage’.
In 2017, the landmark judgment of KS Puttaswamy was seen to have finally carved the right to privacy as an important facet of Indian democracy. In 2020, amidst the Covid-19 crisis, Kerala High Court through its judicial order sets in motion the constitutional doctrine of check and balance to protect not just the right to privacy but also ensure accountability of the Government in protecting the data of its subjects. Into the bargain, the spyware has put in danger citizens’ ‘personal’ space along with their ‘professional’ space. Moreover, the presence of 11 numbers of close allies of the staffer who had accused the former Chief Justice of India of sexual harassment on the spyware’s list, has compromised the Vishakha Guidelines to keep confidential the details and identity of the victim. With clear violation of citizen’s privacy through snooping, tapping and interception, Pegasus, is in derogation of Fundamental Right of Life and Liberty enshrined under Article 21 of Constitution of India.
Undoubtedly, Judicial Autonomy and independence is of paramount importance to keep the democratic spirit in its highs. Power of judicial review prevents the arbitrary law making and actions of the state. However, the autonomy of judges becomes questionable with devices of sitting judges allegedly making to the spyware’s list. Voices around the country echo the demand for a judicial probe into the matter. At this juncture, how frightening it is to not have independent protectors of constitutional democracy?
While it is the media who had the backbone to bring out this story, their freedom and rigor is under the threat of falling to the whims of the Government. Having more than 40 journalist names from varied media houses involved in controversial investigations in the Pegasus list indicates a clear threat to free journalism in India. It is in times of crisis like these, that the citizens must raise their voices to protect not just the constitutional values but also the powerhouse of the country's democratic spirit.
The need for internet governance through regulating social media and digital platforms is undeniable. However, digital governance reforms need to be in line with the basic structure of the Indian Constitution. With French Justice Ministry promptly initiating the investigation into the misuse of spyware ‘Pegasus’, spectators have criticized the government’s insufficient and undemocratic response. Thus, Indian democracy has been shackled by the dodging attempt of the government in the recent scandal. Democracy, in Lincoln’s words, “for the people, of the people, and by the people'‘, seems to be compromised heavily when Former Election Commissioner Ashok Pahwa’s number made it to the alleged Pegasus list right before the 2019 General Elections. This has intensified the claims of tampering of the distinguishing feature of free and fair elections on which our constitutional democracy is claiming to stand tall.