Pegasus, SC and the idea of ‘national security’

There can be no genuine accountability, or an end to impunity, as long as the concept of “national security” fails to place the people — rather than the government — at its heart

Much has been written about the Supreme Court (SC)’s recent order in what has come to be known as the “Pegasus case”.

To briefly recapitulate, after revelations earlier this year that the phones of numerous Indian citizens had been likely infected by a powerful spyware called Pegasus, various petitions were filed in the SC, including by affected parties (Shutterstock)

To briefly recapitulate, after revelations earlier this year that the phones of numerous Indian citizens — including journalists, activists, lawyers, and politicians — had been likely infected by an extremely powerful spyware called Pegasus, manufactured by an Israeli company that claims to sell its product only to governments, various petitions were filed in the SC, including by affected parties.

Through the course of multiple hearings in July, August, and September, the government refused to provide a “yes” or “no” answer to whether it had purchased and deployed the Pegasus spyware, and sought to argue, instead, that the very fact of giving an answer would jeopardise national security.

In the order that it finally passed, the SC rejected the government’s request to be allowed to set up its own committee to investigate the issue, observing – correctly – that this would entail a person becoming a judge in his own case. Instead, the court constituted its own committee, headed by a former SC judge and a senior retired Indian Police Service (IPS) officer. The committee’s terms of reference included both determining whether the Pegasus spyware had been used, as well as making broader recommendations for surveillance reform.

Responses to the court’s order have ranged from the rapturous to the circumspect. Those celebrating the order have pointed out that the SC rejected the government’s attempt to invoke “national security” as a cloak for complete impunity; that the order contains strong statements on the right to privacy and the harms of surveillance; and that the terms of reference issued to the committee are both pointed and direct.

More cautious responses have noted, however, that the court had a range of judicial tools that it could have used to directly hold the government to account, none of which were deployed. For example, it could have drawn an adverse inference against the government for consistently refusing to answer the yes/no question posed to it, or taken such refusal to be an admission of the facts. Indeed, there was a specific prayer before the court that the cabinet secretary be directed to place on affidavit a formal yes/no answer to the question of whether or not Pegasus was used by the government, which – again – the court declined to grant. Other commentators have expressed doubts about why the government, which has so far refused to cooperate with the court, would now decide to cooperate with the committee, and whether further stonewalling might only serve to give this case a protracted burial.

Time will tell whether the “Pegasus case” will bring any genuine accountability, and whether the court’s order will be the first step along that road, or whether it will only be remembered as an opportunity missed. In all the discussion, however, there is one element that deserves more careful scrutiny — and that is the term “national security” itself.

It is telling that in its order, the court paints a picture where all the parties — the petitioners, the government, and the court itself — are in agreement that nothing should be done that will jeopardise the government’s ability to adequately take care of national security. However, the very framing of this issue betrays the assumptions that underlie it. The Pegasus case involves serious allegations of indiscriminate surveillance, potentially undertaken by State actors. The targets of this surveillance are Indian citizens, who are members of the “nation” in “national security.” Issues of surveillance, furthermore, impact not just the target, but, more broadly, the public itself. If the history of surveillance societies (most notoriously, for instance, that of East Germany and the Stasi) tells us anything, it is that widespread surveillance destroys inter-personal trust, is characterised by abuse of power, and corrodes the fabric of society.

The question must then be asked. What is “national security” if not the security of the nation, and what is the nation if not its people? It is equally important to note that the people are not the government; “national security” does not mean making the government secure in its power over the people. Rather, it means making the people secure against the government, especially in the modern era where governments have accumulated vast power — including the power to surveil their citizens.

Civil rights cases such as the Pegasus case, therefore, require all of us to urgently rethink what it is we mean when we think of “national security”. We also need to ask whether court orders such as these — which ostensibly claim to challenge government impunity while nonetheless rushing to assure the government that there will be no encroachment on “national security” — tend to take the people out of the “nation” in “national security”, leaving only the government to act as it will. There can be no genuine accountability, or an end to impunity, as long as the concept of “national security” fails to place the people — rather than the government — at its heart. We still await a court order that will do that.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal