​Secret threats: on state surveillance and democracy 

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State surveillance must be subject to systemic checks and supervision and not mirror the nefarious activities of the dark underworld. As a Supreme Court of India Bench pointed out, the question is not whether the state can use spyware, but who could be its legitimate targets. The Bench, during a hearing on the alleged surveillance of politicians, judges, religious leaders, civil servants and journalists by some state entity, was evidently seeking to curtail arbitrary use of the powers and tools of surveillance. The government has neither confirmed nor denied that it uses Pegasus, an Israel-made military grade spyware that is sold only to state agencies, which was used to target a wide range of people. The matter reached the Court after global revelations about the existence and the use of this tool, and it appointed a technical committee whose investigation was constrained by a lack of cooperation from alleged targets and the government. Several high-profile users of the iPhone, the primary target of Pegasus, continued to get security alerts from the manufacturer that they were targets of suspected state surveillance, even as the matter was before the judiciary. States the world over have used extra-legal measures to snoop on targets that tried to firewall their communication using rapidly evolving technologies. Terrorists and other non-state actors, and criminals are using encryption and other advanced technologies to evade detection as they plot to harm the wider society. Without adequate legal and technological wherewithal, the state would be ineffective in dealing with emerging national security threats. In this context, and particularly against the backdrop of the terrorist attack in Pahalgam in Jammu and Kashmir, the Court has framed a relevant question.

The tendency of the government to arbitrarily invoke national security in defence of a brazen denial of due process and transparency in law enforcement has been called out by the Court in the past. There is also the disturbing trend of government actors routinely labelling political opponents as anti-nationals. If the state is to claim more surveillance powers, corresponding and robust guardrails must also be engineered. National security cannot be an excuse for executive arbitrariness and a violation of individual rights and dignity. Protocols that ensure that clearly defined standards and steps are followed in surveillance must be established. Once the security concerns are overcome, and within appropriate timelines, these processes should be subject to oversight by other branches of government and the public at large. At any rate, no state agency can have the authority to interfere in the democratic politics of the country, or stifle dissenting voices and activism. While trying to tackle an uncertain security environment, the compass of India’s constitutional democracy must stay firm.