Apar GuptaA day before the retirement of Chief Justice N V Ramana, the Supreme Court listed the Pegasus case for hearing before his bench for examining the reports submitted by a technical committee constituted last year. In the midst of the hearing the Chief Justice took the reports on record, unsealed them and read out some portions and then adjourned the case. Later at night, a three paragraph order was released without any operative directions and the reports were resealed. These events have sharpened public cynicism on the possibility of fixing accountability for the use of Pegasus and the role of the Court.
The first strand of a lack of trust in the Court comes from a broader assessment of how it negotiates the process and progress for sensitive cases. It stems from a wider institutional critique of how a range of issues that concern India’s democratic framework and fundamental rights are jettisoned. Here, it almost seems that the SC lacks confidence in its own power and tentatively assesses the response of a muscular executive branch. Take, for instance, the course of the Pegasus case. It took the Court four hearings over two weeks to issue a pre-admission notice to the central government. As per the transcripts made available by court reporters, these four hearings are instructive regarding the failed attempts by the Court to solicit the cooperation of the Union government. For instance, the only written pleading by the Union government till date is a limited affidavit of three pages on August 16, 2021. When examined by the Court, the Chief Justice remarked, “…you don’t want to take a stand…”. It was another matter, that he also stated to the Solicitor General, “We cannot compel you to do something you don’t want to.” This is exactly what the Union government ended up doing.
It set the stage for the second ground of pessimism when the SC on October 27, 2021 constituted a committee of technical experts monitored by retired Supreme Court Justice R V Raveendran. As a court romantic, writing in these pages I had expressed hope that if the committee conducted its proceedings fairly and transparently it could lead to a clear factual determination given the evasiveness of the executive. Here, the Court had expressly noted that central and state governments are “directed to extend full facilities” and even the correspondence from the committee to them would be coordinated by the court registrar. Its role became more important when the SC on December 17, 2021 restrained a similar committee, constituted by the West Bengal government and headed by retired Supreme Court Justice M B Lokur.
But doubts soon began to emerge. While the committee created a website and published a methodology, inviting submissions and devices for study through a public notice, the video recordings for depositions made available were only of victims and some expert witnesses. There was a conspicuous absence of any such testimonial statements by state or central government functionaries. Further, in response to a question on its website — “Will your final report be in the public domain?” — the answer provided was, “The technical committee’s report will be submitted to the Hon’ble Supreme Court of India”.
This final report was submitted by the committee in August in a sealed cover. After its submission, the case was first tentatively listed for hearing on August 12, which came to be deleted and shown as being listed on September 2. This obviously did not happen with the Court listing the case on August 25. These slight delays may be attributable to the heavy caseload in the final few days of a chief justice. However, they do show judicial priorities. The Court has chosen to provide extensive time for hearing a petition concerning “freebies” announced as poll promises by political parties.
This is a quibble when compared to the oral remarks made when select portions of the report were read out. The findings of the committee were announced in summary without disclosing material particulars such as that of the 29 devices examined, five showed signs of a malware that could not be confirmed as Pegasus. Further, the Court remarked that as per the report the government failed to cooperate with the committee. In retrospect, it would have been astounding for a technical committee to obtain evidence and testimony from the government given the failure of the SC. The final material remark was the Court’s response on the committee requesting withholding the public disclosure of the report claiming that it contains information that may create security problems and that the persons who had deposed requested confidentiality. To be clear, the chief justice indicated that a redacted version of the report may be published after the Court has reviewed its contents. However, as per yesterday evening’s order, the report has been resealed and kept in the custody of the Secretary General of the Supreme Court of India. Yesterday’s oral observations have led to a media maelstrom with headlines that attack the victims of Pegasus, fueled by a press conference conducted yesterday by the former Minister for Information Technology, Ravi Shankar Prasad, who called the Pegasus case part of a “motivated campaign” by “opposition parties, so-called intellectuals, some NGOs and a section of the media” against the Prime Minister. How are the petitioners in the case, the press and experts expected to rebut ad-hominem allegations without the public disclosure of the report?
While there may be far more detailed evaluations of Ramana’s term, when viewed specifically from the perspective of the Pegasus case it represented great expectations only to be met with greater disappointment. Given the Pegasus case is pending it is hoped that remedial measures are undertaken, contents of the report are released and clear directions are issued to the government enforcing the writ of the Supreme Court of India.
This article was originally published in The Indian Express on August 27, 2022.