Law for national security

Legend has it that the Greek hero Bellerophon rode his winged horse Pegasus in an attempt to reach heaven. In a modern day retelling of the legend, the Supreme Court appears to have used the Pegasus surveillance controversy to ride into a sphere of institutional credibility. Its order constituting a technical committee overseen by a retired judge to inquire into whether the government purchased the Israeli spyware Pegasus and used it to access private information on phones of Indian citizens has received near-universal acclaim. This acclaim is entirely justified. The order, by stating that the state cannot get ‘a free pass every time the spectre of “national security” is raised’, has spoken truth to power. But courts have the constitutional authority to do more – they can make power bend to the truth. But the way in which this case was framed made this possibility remote. The critical legal determination was whether the possible purchase and use of the Pegasus spyware by official agencies violated the fundamental right to personal liberty and privacy of citizens. Ordinarily the outcome in such cases ought to be a declaration by the Supreme Court that the government either violated or did not violate fundamental rights. This would amount to either a powerful condemnation of governmental actions or an affirmation that it acted according to the law. This is the raison d’etre of a constitutional court. Yet somehow this basic determination morphed into a question of whether the committee which would probe this allegation would be set up by the court itself or the government.medium nocaption88035029 The reduction of a constitutional question of a possible rights violation into a logistical question of how a committee will be constituted is an unfortunate legacy of public interest litigation in the SC. In the face of decades of governmental intransigence, whether it be the Jain Hawala scandal or the inquiry into black money deposited in foreign banks, petitions inevitably ask for an independent fact-finding committee. This request has become more an article of faith rather than a well thought-out legal strategy. Sometimes such a fact-finding committee may be a necessity. Particularly in complex governance questions that courts have no business getting into in the first place, an expert committee is a crutch that courts have relied upon. But in cases such as Pegasus, the determination is purely legal. It is alleged, with some evidence, that the spyware was purchased by official agencies and employed to access personal information on the phones of certain named individuals. Some of these individuals came to court claiming a remedy for a violation of their rights. This is not a technical determination at all – in fact it requires a simple yes-or-no answer. To be fair to the court, such an answer was not forthcoming from the government. To be equally fair to the government, it may have been well within its rights to withhold some information on the ground that sharing it publicly would compromise national security. But if the government is unwilling to produce such grounds before the court, even confidentially, it would be surprising if a committee were to make much headway.medium nocaption88035050 This detour into the logistics of a committee has obscured the larger question – why was the Supreme Court pushed to this position in the first place? Many reasons have been advanced for this, primarily the scanty answers in the government’s “limited affidavit”. But a far more fundamental reason is the absence of a national security law that regulates surveillance for lawful purposes through a sensible procedure.The lack of such a law has meant three things – first, that surveillance happens through decisions of bureaucrats and diktat. This approach, apart from being beyond the pale of the law, is inefficient for anyone doing intelligence work. The most advanced intelligence agencies in democracies the world over operate under law. Information gathering continues seamlessly but responsibly. India still remains backward and prefers inefficient make-do solutions.Second, when a violation of privacy is alleged, the court is left with a daunting first-order question of balancing the right to privacy with the requirements of national security. If courts are left with such wide discretion, intelligence gathering will be contingent on the subjective views of various judges. In the absence of a law, outcomes are bound to be dictated by pro-security or pro-liberty inclinations of judges. Particularly cautious judges may look to defer a determination by setting up a committee. Each of these options may have its merits, but neither can an intelligence gathering system nor the foundations of a fundamental right to privacy function in such an ad-hoc fashion.Third, surveillance, whether through Pegasus or otherwise, cannot be a licence to the government to act like peeping toms looking into our private lives. But in the absence of a law, this is precisely what it feels like, inevitably creating a culture of fear and apprehension. Intelligence gathering must come out of the shadows – doing it through a procedure established by law will ensure responsible investigations and enjoy the confidence of the public it is designed to serve. In Greek legend, Pegasus ultimately couldn’t make it to heaven and instead became a constellation in the northern sky. The Supreme Court has taken a bold first step in checking the flight of the modern-day Pegasus. Only time will tell whether it becomes a fixture in our digital firmament or a thing of the past. The writer is Research Director, Vidhi Centre for Legal Policy. Views are personalIllustration by Chad Crowe