The high point of the week was the Supreme Court order on the Pegasus case (‘Supreme Custodian’, October 29). A three-judge bench on Wednesday led by the CJI, N V Ramana, dismissed the “limited affidavit” filed by the Centre in response to a bunch of petitions alleging violation of their privacy as “an omnibus and vague denial”, rejected the government’s plea to appoint a panel to probe the allegation, and announced a panel of experts of the Court’s choice under the watch of a retired Supreme Court judge to investigate the matter. The Court also framed questions for the panel to ask and provide answers to, which include: Was any Pegasus suite of spyware acquired by the Central or any state government or any Central or state agency for use against the citizens of India? If any government agency has used it to snoop on Indian citizens, under what law, rule, guidelines, protocol or lawful procedure was such deployment made?
At the core of the order is the Court’s refusal to accept the Centre’s plea that the matter not be discussed on grounds of national security. Instead, the Court chose to see the issue in a broad Constitutional framework that encompassed the citizen’s right to privacy, the scope of judicial review even in matters that have a bearing on national security, and the implications of surveillance on free speech. It drew from its own readings in Keshavananda Bharati and K S Puttaswamy and connected the dots linking all three issues. The right to privacy, the Court said invoking K S Puttaswamy, is “as sacrosanct as human existence and is inalienable to human dignity and autonomy”. While the right to privacy is not an absolute right, the Court held that any restrictions “must necessarily pass constitutional scrutiny” and held that any surveillance or snooping done on an individual by the State or any outside agency is an infringement of that person’s right to privacy. Such interventions have to follow procedures established by the law even if it involves matters of national security. The Court held that the State does not get a “free pass every time the spectre of ‘national security’ is raised”, which meant that “no omnibus prohibition can be called for against judicial review” if the matter impinges on national security. In each case, the government will have to convince the Court if it wants to avoid a judicial review.
The Court also drew a link between surveillance and censorship, particularly self-censorship, and held that snooping can potentially have a “chilling effect”. This “chilling effect... is an assault on the vital public-watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information”, the Court held.
The Indian Express editorial described the order as an “an emphatic reassertion” of the Supreme Court’s “role and responsibilities as the custodian of individual rights enshrined in the Constitution”. It also added that the “the order is a strong rebuttal of the government’s specious and self-serving use of national security as an alibi: a catch-all phrase used these days to criminalise all forms of dissent”.
Meanwhile, India’s 10-wicket loss to Pakistan in the T20 World Cup continued to echo in different ways throughout the week. Two medical students in Srinagar, a teacher in Congress-ruled Rajasthan, and three Kashmiri students in Agra were arrested for allegedly supporting Pakistan. This newspaper asked for the judiciary to step in and remind the State authorities that the Constitution protects free speech and celebrating the success of Pakistan, or any other team, in a game against India does not count for a crime (Ovation and sedition, October 29).
Soon after the match, Hindu right-wingers had trolled Mohammed Shami, the ace fast bowler who had a bad day on the field against Pakistan, like many of his colleagues including Rohit Sharma, K L Rahul and Hardik Pandya. It was clear Shami was being targeted for his faith. Many former cricketers including Virender Sehwag and Sachin Tendulkar endorsed his credentials as a cricketer. But Team India captain Virat Kohli made a radical intervention a day ahead of a critical match with New Zealand. Addressing the media, he said: “To me attacking someone over their religion is the most, I would say, pathetic thing that a human being can do. Everyone has the right to voice their opinion and what they feel about certain situations, but I personally have never ever even thought of discriminating [against] anyone over their religion. That is a very sacred and personal thing to every human being and that should be left there."
Kohli has got to the crux of the matter — Shami was singled out and attacked because of his religion. It is a big moment for Indian sports since sporting celebrities all this while have been cautious not to comment on matters deemed to be in the political realm. Kohli, whose admirers cut across language, faith, ethnicity, and even nationality, has broken this barrier, self-imposed by celebrities, to speak up for a brother cricketer and in the process, has expanded the discussion beyond the merits of Shami, the cricketer. Kohli’s words have put the spotlight on an abominable trend on social media — the framing and shaming individuals on the basis of their faith. He also added: “This drama created on the outside is purely based on people's frustrations, their lack of self confidence, their lack of compassion, hence they find it so amusing to go after people.”
Take a bow Captain Kohli.
Thank you,
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