With allegations that opposition leaders, Union ministers, bureaucrats, an election commissioner and even a Supreme Court judge could have been spied on, the Pegasus spyware scandal points to one of the most egregious misuses of power in India’s history.

The Israeli manufacturer of Pegasus insists that it only sells its weapons-grade spyware to governments, prompting allegations that this operation was carried out by the Union government.

In a more ideal world, this would have meant India’s Parliament swinging into action, with MPs holding the government to account. That is exactly what an elected legislature’s job is in a democracy. Except, curiously in India, Parliament has very little power over the Union executive when it comes to surveillance. Uniquely for a democracy, in fact, India’s intelligence agencies function as free agents with no democratic oversight.

Colonial hangover

Of India’s intelligence agencies, the two most prominent are the Research and Analysis Wing – responsible for gathering foreign intelligence – and the Intelligence Bureau, which works in the domestic theatre. A 2019 report by Asia Times held that “that at least one federal intelligence agency that concentrates on generating intelligence from every state was one of the buyers of the Pegasus spying software”.

The Intelligence Bureau traces itself back to the British Indian Empire of the late 19th century with the organisation set up to keep an eye on Russian activities in Afghanistan. “The only legal framework that underpins the IB is therefore a government order from 1887,” explained Arvind Radhakrishnan, a legal academic in Bengaluru. “There is no other constitutional basis to such a powerful and critical organisation.”

The RAW was formed similarly in 1968, set up by only a government order.

Wide misuse

Without any laws to regulate them, Parliament has no oversight over the intelligence capabilities of the Union government. This is one reason why they have often been widely misused, with the party in power employing them for its own narrow purposes, rather than in the national interest.

After the 1975 Emergency, for example, the RAW was accused by the new Janata Party government of often acting more as Indira Gandhi’s private force than India’s external intelligence agency.

Political scientist and historian Vinay Sitapati has written about how Prime Minister PV Narasimha Rao used the Intelligence Bureau to spy on his own MPs in the 1990s, trying to gauge who would be a thorn in his side as he tried to dismantle state regulations on industry as part of India’s economic reforms.

In 2018, Intelligence Bureau sleuths were even caught outside the house of the director of the Central Bureau of Investigation, Alok Verma. Tellingly, Verma was soon ousted from his job.

Bad apple

In having intelligence agencies without any legal basis, India is unique amongst democracies. In the United Kingdom, intelligence agencies are governed by parliamentary law and overseen by parliamentary committees. Similarly, in the United States for example, clear laws back intelligence gathering. Moreover, both houses of its federal legislature have committees that look into the working of the country’s intelligence agencies. In the same way, intelligence agencies in Australia are governed by law and overseen by a parliamentary committee.

As Pranesh Prakash, co-founder of the think tank Centre for Internet and Society, points out, the positive legacy of the the US establishing legislative oversight of intelligence in the 1970s, meant that the whistleblower Edward Snowden’s revelations in 2013 “did not uncover any spying on Opposition politicians, journalists, judges, and human rights defenders for partisan political ends”.

In 2018, a committee chaired by former Supreme Court judge Justice Srikrishna submitted a report to the IT Ministry which recommended that the Union Government “carefully scrutinise the question of oversight of intelligence gathering and expeditiously bring in a law to this effect” along with institutionalising the “periodic review before a parliamentary committee” of intelligence activities. Without a law governing them, the report held that India’s intelligence agencies were “potentially unconstitutional”.

Even more disappointing than there being a lack of formal apparatus around intelligence gathering is the complete lack of political will around introducing any such mechanism. Every government in independent India – from the Congress to the Third Front to the BJP – has been happy to carry on with the unaccountable system the British Raj left behind.

Political will

The one exception to this is a private member’s bill introduced in Parliament by Manish Tiwari, a Congress MP in 2011 which proposed to “regulate the manner of the functioning and exercise of powers of Indian intelligence agencies”. Interestingly, the bill expressly barred intelligence agencies from doing anything that “furthers the interests of any political party or coalition of political parties or other such interest groups”.

However, since this was a private members bill – introduced by an MP in her personal capacity without the backing of the government – it had little chance of being passed. Notably, at the time the Union government was headed by the Congress. So while a Congress MP wanted to regulate the intelligence agencies, his own party’s government made no such effort. It was only later in 2019, once it was out of power that the Congress released a national security plan that called for legislative oversight of the intelligence agencies. Of course, since the party lost the elections, the plan did not even get a chance to be implemented.

Legislative oversight of the executive is one of the key tenets of the Parliamentary system of democracy in place in India. Till now, much of this has been deflected using partisan politics. But as the scale of the Pegasus snooping shows, if intelligence gathering in India is allowed to continue unchecked, it might end up undermining Indian democracy itself.