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Mainstream, VOL LIX No 46, New Delhi, October 30, 2021

Pegasus Judgment: Milestone for Democratic Constitutionalism | Vijay Kumar

Friday 29 October 2021

by Vijay Kumar

After long time, marked by deference and deferment, the Supreme Court finally asserted itself and lived up to its constitutional role of sentinel on qui vive by appointing an expert committee headed by Justice R.V. Raveendran with wide mandate to look into the widespread violation of Right to Privacy through surveillance by Pegasus Spyware. The intervention of the Court has established the supremacy of rule of law over political will to power, to use the expression of Fredrich Nietzsche. The Pegasus judgment has reaffirmed the supremacy of constitutional hermeneutics and will go down as a milestone for democratic constitutionalism. And, finally, the landmark judgment has succeeded in production of “public reasoning” in a sense conceptualised by John Rawls and entrenched in recent time by Amartya Sen.

There are three significant takeaways of the Pegasus judgment. First, the court made it clear in unmincing and unmistakable language that it was not going to be silent spectator when fundamental rights of the citizens are violated. Second, the snooping of the citizens has to be justified on constitutional grounds by the Government, particularly on the three grounds of illegality, necessity and proportionality laid down in famous judgment in Puttaswamy in 2017 in which right to privacy was held to be fundamental right. The third takeaway is that regime of surveillance has “chilling effect” on public as well as media. The apprehension of snooping results in self-censorship which, in turn, withholds the free flow of information. The illegality, indeed criminality, of surveillance affects the press freedom. What is left unsaid is that any attempt to silence the Press impinges upon public’s right to know, which is also a facet of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

The Judgment devoted almost half a dozen paragraphs on freedom of the Press and held that snooping on the journalists will result in deprivation of source of information. In paragraph 40, the Court declared in emphatic terms that protection of journalistic source is guaranteed fundamental rights. For safeguarding the interest of the Press, the judgment placed reliance on its famous judgment in Indian Express case in 1980’s and the recent judgment in Anuradha Bhasin case arising from shutdown of internet in Kashmir, incidentally, authored by Justice N.V. Ramana, as a Chief Justice then was, in which it was enunciated that use of internet fell within the ambit of right to free speech and expression, and shutting down internet infracts that right.

The Pegasus judgment has further entrenched the right to privacy. The Court drew upon the privacy judgment by 9 Judge Bench in K.S. Puttaswamy handed down in 2017. The Puttaswamy judgment was given effect to in the context of concrete instances of snooping on journalists, opposition leaders, including Rahul Gandhi and other citizens. The Central Government, on each hearing, raised the bogey of national security and opposed the judicial interference. The Court stood compelled to hold that bugbear of national security cannot be given “free pass” to trample upon fundamental rights of the citizens. The judgment recorded even the submission of Petitioners, particularly submissions of Kapil Sibal, counsel of N.Ram of the Hindu, that the issue of national security was paramount. But the Government in the garb of national security subverted democracy by spying on the conversation of journalists, opposition leaders, activists and other concerned citizens. The Court rightly envisioned the Orwellian nightmare and rejected the objection of judicial scrutiny on specious ground of national security. In fact, the judgment is prefaced by the quote of George Orwell that “if you want to keep a secret, you must also hide it from yourself” which was very apt in the context. The systematic attempt to subvert the democracy has been interrogated by timely judicial intervention.

The operative portion of the judgment appointing Expert Committee headed by one of the most credible retired Judge of the Supreme Court Justice Raveendran is underpinned by the fact that despite numerous opportunities granted to the government, it remained defiant and persisted with obduracy and disdainfully refused to make it’s stand clear and did everything to obfuscate the issue. Except raising the bugaboo of national interest, the government was not forthcoming by dogged refusal to disclose necessity for spying. The affidavit filed by the Government was alarmingly cryptic, blissfully vague, calculatiingly evasive and downright misleading.

The Pegasus judgment has underscored the structural linkage between judicial activism and democracy-enhancing potential. The reluctance on the part of the court to interrogate the overreach of the Govt has always been backslider of democracy. The image of the court is refurbished only when it sides with citizens. The Pegasus judgment has come at a time when democracy has backslid in India and the credibility of the Supreme Court suffered considerable erosion. The Pegasus judgment may restore the public confidence in the court.

(Author: Vijay Kumar is Advocate, Supreme Court of India)

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