The Pegasus Breach: SC guaranteed the citizen’s fundamental right to privacy. Now enact laws to uphold it

The Supreme Court has enquired, in a case relating to the tapping of a phone of a police officer and his daughters in Chhattisgarh, whether there is any such thing as privacy left in the country. The issue becomes more salient with revelations that Israeli spyware Pegasus was used to snoop on Indian politicians and activists, with no clarity on the actual number of citizens whose privacy was violated. Pegasus represents a wholesale takeover of an individual’s privacy and identity – courtesy the computer and the smartphone in the digital era – making older issues like phone tapping seem relatively quaint.

It was this radical threat to privacy posed by the digital era that moved the apex court, two years back, to recognise that the constitutional rights granted to an Indian citizen also include a fundamental right to privacy. If a government uses spyware like Pegasus to spy on opposition politicians or activists it would make the equivalent of the Watergate scandal a routine event, hollowing out democratic rights entirely. The Pegasus case thus dramatically highlights the need for laws to protect privacy.

Snooping and official surveillance is, of course, justified in some instances – as when tracking potential terrorists or criminals. This end can be served by requiring a judicial order for placing someone under surveillance. The company selling Pegasus says it was sold only to officially authorised government bodies for prevention of crime and terrorism. Here, it is noteworthy that the Centre has not categorically denied licensing Pegasus. But even more important than the question of whether it used Pegasus or not in this instance is that the government of the day – whether at Central or state level – can use similar ware to spy on citizens anytime it wants to, even if it flagrantly breaches their fundamental right to privacy.

It is thus incumbent upon government, Parliament, judiciary and Facebook which owns WhatsApp to nail this serious breach of privacy. Those claiming to have been violated like Congress leader Priyanka Gandhi Vadra, Bengal chief minister Mamata Banerjee, and activists like Bela Bhatia must themselves approach courts for redress without leaving it to PILs, often poorly drafted, that get junked for their non-serious approach. Simultaneously, the two parliamentary committees intending to pursue the matter must get into the act. A fundamental right to privacy without strict legislative safeguards and stiff penalties will not get the respect it deserves – raising urgent questions for the future of India’s democracy itself.

This piece appeared as an editorial opinion in the print edition of The Times of India.

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