Law for national security: Vital point on rights is sidestepped in the way SC’s Pegasus case is framed

News: A month back, Supreme Court had appointed an independent expert technical committee to examine allegations that the government used an Israeli spyware, Pegasus, to snoop on its own citizens. This decision of SC received near-universal acclaim, reaffirming its institutional credibility.

But, the constitutional court could have done more in terms of the outcome of the case.

Must Read: SC’s judgement on Pegasus spyware case – Explained, pointwise
Where the SC’s judgement fell short of the desired outcome?

Critical question not answered: The court had to determine whether the possible purchase and use of the Pegasus by official agencies violated the fundamental right to personal liberty and privacy of citizens. Usually, in such cases, SC declares whether the government either violated or did not violate fundamental rights. Yet in this case, the basic determination transformed into a question of whether the committee would be set up by the court itself or the government.

Committee was not required: A fact-finding committee may be a necessity in complex governance questions. But, in cases such as Pegasus, where certain individuals came to court claiming a remedy for a violation of their rights, it was not a technical determination. It simply required a yes-or-no answer.

But, why was SC pushed to act in this case?

A major reason is the absence of a national security law that regulates surveillance for lawful purposes through a sensible procedure.

What does a lack of a national security law indicates?

The lack of such a law means three things –

Firstly, that surveillance happens through decisions of bureaucrats and diktat. This approach is inefficient for anyone doing intelligence work.

Secondly, when a violation of privacy is alleged, the court is left with a 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.

Thirdly, the absence of a national security law, creates a culture of fear and apprehension. Intelligence gathering must be done through a procedure established by law. This will ensure responsible investigations and enjoy the confidence of the public too.

Source: This post is based on the article “Law for national security: Vital point on rights is sidestepped in the way SC’s Pegasus case is framed” published in TOI on 2nd Dec 2021.

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