Swastik Madake

The bombshell revelations made by a global coalition of agencies, the Pegasus exposé, are nothing but bolt out of the blue with grave implications that are apparent because of spyware based surveillance, along with the daunting questions it asks and its horrendous and pernicious effects on democratic ethos.

According to the report, over 300 Indian individuals from the uppermost echelons of institutions and power were targeted by highly powerful spyware developed by NSO Group, an Israeli company. Pegasus, being highly nuanced spyware with incredible capacities uses a “ zero-click “ mechanism, which doesn’t require any action by the user, to infiltrate any kind of device to access an entire digital imprint of the target by snooping into all kinds of activities carried out by target- calls to emails and internet history to location data. The catch is, according to the group, it sells the product only to government agencies for tackling terrorism and security concerns. Hence, the question is simple – Did the Indian government spy on its own people? The scandal becomes important to understand because of the elements involved – the power of the spyware, the targets and possible clandestine role of government, the grave threats and questions posed on democracy and the pursuit towards avoiding an Orwellian world.

The Prey and the predator

 The way you can tell who the predator is from the kind of claw marks on the victim, we can predict who the culprit might be from the background of targets. The targets are journalists, the legal community, government officials and even ministers and leaders of the opposition. Though the role of the ruling dispensation hasn’t been proved, it appears that it is most likely the government who tried to snoop on potential voices of dissent. What makes the conundrum interestingly scary is the absence of outright denial by the government. Also, recently, a New York Times report stated that India had purchased the surveillance software. But irrespective of the role of government, there are important lessons regarding surveillance and the impact which could be caused because of such nefarious tactics of realpolitik on democracy.

Insidious Repercussions

Firstly, the very existence of surveillance is highly problematic. It impacts the right to privacy (Article 21), a fundamental right as pronounced in the Puttaswamy judgement. Along with it, freedom of speech ( Article 19) is severely hampered, as it creates suspicion in the minds of people about whether they are being watched by the government thereby impacting their ability to express, receive and discuss ideas or events which are unorthodox, controversial or provocative and which are against the ideology of ruling dispensation. This is a chilling effect on the freedom of dissenters and journalists, expressing and reporting the truth.

Secondly, surveillance, even when carried out within the legal framework has its fault lines. There is no scope for a legal remedy before and after a person is being kept under surveillance since the system itself is covert. Moreover, the questions arise: where are the prosecutions based in the surveillance? Is the surveillance necessary and proportionate? Who decides and who is accountable to whom concerning that? Though in a democratic setup, the disproportionate power offered by the surveillance laws and mentioned methods, results in its authoritarian use by executive curbing the powers of courts to issue writs ( Art. 32 and 226 ) since the breach of rights is invisible.

Thirdly, looking from a broader perspective the institutional stakes involved are high and shakes the democracy to its core, especially given this particular instance of snooping in India. Surveillance of officials of the Election commission asks a tough question about the very core foundation on which the democracy exists – the elections. Political leaders, specifically if the opposition is surveilled, then there is a significant chance of manipulation. Strategies to be formulated by the opposition, if are already accessed by the power holders, then pre-emptive action to stifle legitimate opinion, dissent and protest will be carried out by the state. Such kind of actions will virtually neutralise the opposition forever, paving a path to authoritarianism. The government officials from CBI are under controversy, even the family of the woman who accused a Supreme court judge of sexual harassment throws open various areas which were covered by the attackers. This indiscriminate power is a threat to the separation of power since the control of the executive spreads beyond the boundaries set by the constitution.

Axis of legislations

The Indian Telegraph Act, 1885 ( Section 5) and Information Technology Act, 2000 (section 69) are the two legislations under which communication surveillance is carried out while the Indian Telegraph Rules identifies the officials who can order such surveillance. In the Indian Telegraph Act, 1885, the government can carry out call interception, and that too under certain situations where unity and integrity of the nation, friendly relations with foreign states or public order, or prevention of incitement to the commission of an offence is involved, which are similar to the restriction on the fundamental right to freedom of speech. Indian Telegraph Act demands the occurrence of “ public emergency, or the interest of public safety “ for the interceptions to operate. Moreover, even this legal interception cannot be carried out against journalists according to a proviso in Section 5(2). Supreme Court of India, in Public Union for Civil Liberties v Union of India (1996), had laid down guidelines for interceptions highlighting the necessity for provisional safeguards in this act, which further became the basis of Rule 419A in Telegraph Rules, 2007 and IT act in 2009 which states the authorities who can pass orders of surveillance in the separate cases of centre and state. Section 69 of IT Act, 2000 and IT Rules, 2009 were enacted to create a legal framework for electronic surveillance. Under IT Act, all electronic transmission of data can be intercepted. However, what is strikingly important is that in addition to restrictions in the Telegraph act, Section 69 of the IT Act broadens the gamut of interception, monitoring and decryption of digital information “for the investigation of an offence”. It also does away with the condition of precedence of occurrence of public emergency, as in the Telegraph act. This divergence has also been noted by the Planning Commission and the Group of Experts on Privacy Issues 2012. While there is a pressing need for a legislative framework on data protection, the Data protection bill, has been on the drawing board for a long time. However, it must be ascertained whether the extravagant time consumption on the formulation of its provisions is leading us to secure data privacy. When the right to privacy is already under the guillotine, the blades of the new Data Protection Bill sharpened by a Joint Parliamentary Committee gives primacy to national security over personal data privacy, thereby increasing the chances of surveillance which will be justified on the grounds which are elusive under the garb of national security. Thus, the axis of legislation is unfairly tilted in the favour of the state, while their purpose was supposed to be the protection of the rights of citizens.

 

In pursuit of answers

Well, there are no easy answers. Technological solutions posed for Pegasus are very much inadequate since the software leaves no trace. But more importantly, the surveillance laws have to be reformed since the existing laws are weak and upcoming bills like the Data Protection bill which doesn’t do much good to tackle surveillance require to be tweaked in the interests of people. The judiciary should take cognisance of the disproportionate power with the executive. Flagrant use of technology such as Pegasus, when weaponised against people of democracy can eventually lead to a police state of Orwellian world where everyone is a potential target in case of state-sponsored mass surveillance. Though, in this case, nothing has been proved yet and the debate is being reduced to mere allegations, it’s pretty conspicuous that scandals like Pegasus are pernicious to the very foundation of democratic ethos and principles. As citizens, we must be individually vigilant about the threat associated with cyber-surveillance and data privacy while performing our duty as an active citizenry by holding the power holders accountable and contributing to civil society efforts to bring necessary changes legislatively. In the absence of our efforts which are based on the illogical reasoning of being incapable to do anything about “ big power games” or partisan politics, just like how noted political scientist P.B. Mehta puts it, “ Democracy will likely, like Bellerophon, fall of Pegasus’s back “.