What the Pegasus surveillance scandal means for Indian democracy?

Source: Indian Express, Indian Express 2, Livemint

Relevance: Implication of the Pegasus spyware issue

Synopsis: The Pegasus scandal is a matter of grave concern for Indian democracy. Implications and future course of action.

Implications of Pegasus spyware issue

• Allegations against Supreme Court: There are allegations that the phones of the woman who had complained of sexual harassment against a former Chief Justice, and her family, might have been subject to surveillance. If true, it casts a serious doubt on the sanctity of the Supreme Court’s proceedings.
• Integrity of democratic institutions: A system in which political opponents, officials of the Election Commission, and political colleagues could be subject to this kind of surveillance, will inspire less confidence in the democratic institutions too.
• National security implications: The explosive growth of surveillance technology vendors is a global security and human rights problem.
  • Even if authorized (which is doubtful), the use of Pegasus poses a national security risk. Who else will have access to that information? How much geopolitics is now influenced by these shadowy cyber weapons?
• The issue also indicates that surveillance rules in India are not as per global standards. This hinders India’s ability to enter data sharing agreements, which allow government agencies to access data stored overseas when required, with other countries.
  • Surveillance rules in sync with the global standards would allow India to enter into executive data sharing agreements with countries like the US which require judicial review of surveillance-thereby solving the inequitable present data access scenarios where law enforcement authorities in India have to deal with a long process to access data stored abroad,

What needs to be done?

• Global agreement: It is not primarily China, but democratic states like Israel and UK, that are selling technologies for deepening the surveillance powers of states. There needs to be a global compact, or at least one amongst democratic states, on regulating these technologies.
• Role of the court: The Pegasus allegations are debilitating in their potential effect on the trust that underpins the pact between government and people. The court must play its role in ensuring that the questions are answered, and due process is followed, no matter where it might lead to.
• Surveillance reforms: Following reform measures need to be implemented –
  • The review committee consists of officers of the executive branch of the government. The oversight committee, to enable a working separation of powers, must consist of other branches of government, i.e. the legislative and judiciary
  • Neither the IT Act nor the 2009 Interception Rules, provide a grievance redressal mechanism for surveilled persons. Due to the strict confidentiality provisions, surveilled persons find it impossible to ascertain and prove whether they were being surveilled.
  • Checks and balances on discretionary powers: The law allows for surveillance for reasons including the interest of public safety where it is necessary or expedient so to do in the interests of the sovereignty and integrity of India” and for “public order or for preventing incitement to the commission of an offence”. This is a lot of discretion here, which often leads to abuse of these powers. Hence, laws should be amended and narrowed by providing an indicative list of what constitutes abuse of surveillance or interception powers, with stringent penal consequences.