At the heart of this legal battle is NSO Group, the developer of Pegasus, a spyware tool of notorious capability. Pegasus has been repeatedly linked to state-sponsored surveillance campaigns targeting journalists, human rights activists, political dissidents, and even heads of state across the globe, transforming smartphones into pocket-sized spies. The U.S. court’s decision to hold NSO Group liable for its actions and impose substantial damages signifies a potential turning point. The sheer size of the penalty, combined with its status as the first U.S. jury verdict against a commercial spyware company, signals a shift in the landscape of accountability. NSO Group’s defence has often leaned on the argument that it sells only to sovereign governments, thereby attempting to deflect responsibility for how its tools are used. However, this verdict pierces that veil, holding the technology provider directly accountable for facilitating illegal acts. This suggests that the creators of such potent surveillance tools may no longer be able to easily evade responsibility for the abuse their products enable.

This article will dissect the Meta vs. NSO Group judgment, explore its implications for the shadowy spyware industry, and critically examine what this U.S. legal precedent means for India. The U.S. ruling, therefore, is not just a foreign legal development but a significant event with potential repercussions for India’s ongoing struggle for digital rights and accountability.

The verdict rings out: Meta’s gruelling six-year battle and NSO’s defeat

The culmination of a nearly six-year legal confrontation saw a U.S. federal jury in the Northern District of California order NSO Group to pay Meta Platforms approximately $167.7 million. This sum comprised $444,719 in compensatory damages, covering Meta’s costs in responding to the attack, and a colossal $167,254,000 in punitive damages, designed to punish NSO Group for its conduct and deter future wrongdoing.

This damages trial followed a crucial summary judgment by U.S. District Judge Phyllis J. Hamilton on December 20, 2024. In that earlier ruling, Judge Hamilton found NSO Group liable for violating the U.S. Computer Fraud and Abuse Act (CFAA), the California Comprehensive Computer Data Access and Fraud Act (CDAFA), and for breaching WhatsApp’s terms of service. The case centred on NSO Group’s 2019 cyberattack, which exploited a vulnerability in WhatsApp’s audio calling feature. This flaw allowed NSO to covertly install its Pegasus spyware on the mobile devices of more than 1,400 WhatsApp users across the globe, including journalists, human rights activists, political dissidents, and diplomats.

Throughout the litigation, NSO Group employed a multi-pronged defence strategy, which was systematically dismantled by the U.S. courts. A cornerstone of NSO’s defence was the claim of foreign sovereign immunity, arguing that because it sells its spyware exclusively to government agencies, it should be shielded from lawsuits as an agent of those foreign states. This argument was consistently rejected by U.S. courts, culminating in the U.S. Supreme Court declining to hear NSO’s appeal on the matter. This series of rejections was pivotal, establishing that NSO Group, despite its governmental clientele, could indeed be sued in U.S. courts, particularly as evidence emerged that NSO utilized U.S.-based servers for its operations. NSO had long contended that U.S. courts lacked jurisdiction over its foreign operations targeting foreign victims, a claim significantly undermined by these rulings.

Furthermore, the NSO Group attempted to distance itself from the actual deployment of Pegasus, asserting that its government clients operate the spyware independently. However, court documents and trial testimony painted a different picture. Evidence, including sworn depositions from NSO employees, revealed the company’s direct involvement in the spyware’s installation and data extraction processes. Some employees even admitted to using WhatsApp to install spyware and continuing these activities even after Meta had filed the lawsuit. This direct operational role contradicted NSO’s narrative of being a passive technology provider.

The company also faced criticism and sanctions for its conduct during the discovery phase of the lawsuit, including its failure to produce the Pegasus source code as ordered by the court. In arguing against damages, NSO contended that Meta had suffered no actual financial loss, suggesting that employee salaries for remediation efforts would have been paid regardless of the attack and that WhatsApp’s servers were not physically damaged. The jury, however, sided with Meta, awarding the full amount of compensatory damages requested.

The crumbling of the “sovereign agent” facade is perhaps one of the most significant outcomes of this litigation. Spyware companies have historically hidden behind the argument that they merely sell tools to governments, thereby deflecting responsibility for any misuse. This verdict, by establishing NSO’s direct actions in deploying spyware and by piercing the sovereign immunity claim, creates a powerful precedent. It suggests that the creators of these potent surveillance tools can be held accountable in jurisdictions like the United States, especially if their actions involve U.S. infrastructure or violate U.S. laws. This development considerably increases the legal exposure for such companies on a global scale.

The composition of the damages award is also telling. The overwhelming proportion of punitive damages ($167.25 million) compared to compensatory damages ($444,719) indicates that the jury found NSO Group acted with “malice, oppression or fraud,” as noted in the court’s findings. Compensatory damages are intended to cover actual losses incurred by the plaintiff. Punitive damages, on the other hand, are designed to punish the defendant for egregious conduct and to deter similar behaviour in the future. The jury’s decision to award such substantial punitive damages sends an unequivocal message that NSO’s conduct was not merely illegal but profoundly reprehensible. This financial blow is aimed squarely at NSO Group and, by extension, the broader spyware industry, signalling that such activities will incur severe financial penalties that go far beyond merely covering the victim’s direct costs. This could make the business model of such companies, some of which, like NSO, are already reported to be under financial strain, far riskier and less tenable.

Pegasus unveiled: The “ghost” in the machine and its modus operandi

Pegasus is not just any spyware; it is a highly sophisticated tool engineered to infiltrate both iOS and Android devices, the dominant mobile operating systems globally. Its notoriety stems significantly from its “zero-click” exploit capabilities. This means Pegasus can be surreptitiously installed on a target’s device without requiring any action from the user – no need to click a malicious link, open an infected attachment, or even answer a call. The spyware can be delivered silently, for instance, through a missed WhatsApp call or a specially crafted message that doesn’t even need to be opened by the recipient.

Once installed, Pegasus effectively hands over complete control of the compromised device to the attacker. It can access a vast trove of personal and sensitive information, including encrypted messages (either by intercepting them before encryption on the sending device or by reading them after decryption on the receiving device), emails, photos, videos, call logs, contact lists, GPS location data, and stored passwords. Furthermore, Pegasus can remotely and covertly activate the device’s microphone and camera, turning the phone into a live surveillance device, all without the owner’s knowledge or consent. During the U.S. trial, NSO Group executives themselves conceded that Pegasus is capable of vacuuming up “every kind of user data on the phone”.

NSO Group has consistently maintained a specific narrative about its business model. The company claims that its flagship product, Pegasus, is sold exclusively to vetted government security and law enforcement agencies. The stated purpose, according to NSO, is to aid these agencies in legitimate activities such as conducting rescue operations and combating serious criminals, including terrorists, money launderers, and drug traffickers.

However, this official line stands in stark contrast to the findings of numerous independent investigations conducted by organizations like the University of Toronto’s Citizen Lab, Amnesty International, and various international media consortia, including the Pegasus Project. These investigations have meticulously documented the widespread use of Pegasus against unintended targets: journalists attempting to hold power accountable, human rights activists defending fundamental freedoms, lawyers representing sensitive clients, political opponents challenging incumbent regimes, and even heads of state. The trial also revealed that NSO Group invests heavily in its offensive capabilities, with executives admitting to spending tens of millions of dollars annually to develop sophisticated malware installation methods. The price tag for such capabilities is correspondingly high; for instance, NSO reportedly charged European government customers up to $7 million for the ability to hack just 15 devices, with additional costs for targeting devices internationally.

The glaring disparity between NSO Group’s stated purpose for Pegasus and the documented reality of its deployment against civil society effectively exposes the fallacy of the “dual-use” argument often employed for such powerful technologies. NSO’s defence consistently hinges on the supposed legitimacy of its clients and the intended use of Pegasus against “serious crime and terrorism.” However, the evidence presented during the trial, coupled with a vast body of independent research, points to a persistent pattern of abuse. This discrepancy suggests one or a combination of possibilities: NSO’s vetting processes for its government clients are woefully inadequate, its contractual controls designed to prevent misuse are ineffective or unenforced, or the company is wilfully blind to, if not complicit in, the misuse of its spyware by these clients. The argument that such tools have both legitimate and illegitimate uses – the “dual-use” defence – often crumbles when the technology in question is as inherently invasive as Pegasus and the oversight mechanisms are minimal or absent.

Moreover, the very existence, development, and marketing of a tool like Pegasus, capable of achieving total and covert compromise of a personal device, indicates a dangerous global trend towards the normalization of extreme surveillance capabilities. The fact that NSO Group could successfully develop and sell such a product to numerous governments worldwide suggests a significant global appetite for these intrusive powers. The technical sophistication of Pegasus, particularly its zero-click infection vectors, means that traditional cybersecurity defences employed by average users are often rendered useless. This creates an environment where the reasonable expectation of digital privacy is severely eroded, potentially casting a chilling effect on free speech, association, and dissent, even for individuals who are not directly targeted but fear they could be.

Turning point for spyware accountability?

The verdict against NSO Group is a landmark precedent in the fight against the unregulated proliferation of commercial spyware. It is the first U.S. jury verdict against a commercial spyware company and, significantly, the first U.S. verdict against NSO Group itself. The financial award also represents the largest reported verdict in a civil case brought under either the Computer Fraud and Abuse Act (CFAA) or the California Comprehensive Computer Data Access and Fraud Act (CDAFA).

The judgment is anticipated to have a significant impact on the broader spyware industry. Meta, in its statement following the verdict, emphasised that the ruling acts as a “critical deterrent to this malicious industry”. The success of Meta’s lawsuit may embolden other victims of spyware, whether individuals or corporations, to seek legal recourse against spyware vendors. Furthermore, the ruling could make it considerably harder for spyware companies to hide behind “plausible deniability” regarding the use of their products. This, coupled with the substantial financial penalty, is likely to lead to increased legal and financial risks for the industry, potentially affecting investment, operational strategies, and the overall viability of businesses built on selling such intrusive technologies.

This legal victory also serves to empower technology platforms in their efforts to protect their users and systems. It validates the legal strategy employed by tech companies like Meta, which utilized anti-hacking statutes such as the CFAA to hold spyware developers accountable for exploiting their platforms. Demonstrating a commitment beyond mere financial compensation, Meta has announced its intention to donate the damages recovered from NSO Group to digital rights organizations that are actively working to combat surveillance abuses and protect vulnerable users. This action is part of a growing trend where major technology companies, including Apple, which has also filed its own lawsuit against NSO Group, are taking a more proactive and aggressive stance in combating the commercial surveillance industry through both legal challenges and technical countermeasures.

The outcome of the Meta vs. NSO case signals a potential shift in the power dynamics that have characterized the surveillance technology landscape. For years, spyware firms like NSO Group operated largely in the shadows, their actions difficult to definitively prove and their legal standing often ambiguous due to claims of sovereign immunity and client confidentiality. Technology platforms, whose services were exploited as vectors for spyware delivery, were often in a reactive posture. This verdict, however, building upon the crucial judicial rejection of NSO’s sovereign immunity claims, empowers these platforms. They can now more confidently leverage their considerable legal and technical resources to proactively protect their ecosystems, thereby making it more costly and legally perilous for spyware vendors to target mainstream communication platforms.

The case also inadvertently highlights the role of the U.S. legal system as a, perhaps reluctant, enforcer of global digital rights. This is also a consequence of the geographical concentration of major technology company headquarters and critical internet infrastructure, including servers, within the United States. When global communication platforms, many of which are U.S.-based, find their terms of service violated or their U.S.-located servers accessed without authorization for the purpose of deploying spyware, it provides a jurisdictional hook for legal action within the American judicial system. While the outcome in the Meta vs. NSO case is viewed positively by digital rights advocates, it does raise broader questions about the sustainability and global desirability of relying predominantly on one nation’s courts to address what inherently international issues of spyware abuse are. This underscores the pressing need for enhanced international cooperation and the development of stronger, harmonized national laws elsewhere to combat this menace effectively.

Finally, the substantial financial penalty imposed on NSO Group, particularly the massive punitive damages award, underscores the potential of economic deterrence as a key weapon against the spyware industry. NSO Group has been reported to be facing significant financial difficulties, including being placed on a U.S. government blacklist that restricts its access to American technology and markets. A judgment of nearly $168 million could indeed be a fatal blow to an already struggling entity. This suggests that economic pressure, exerted through sanctions, large civil penalties, and divestment campaigns, might be one of the most effective tools to curb the proliferation of commercial spyware, especially since ethical appeals or reliance on the discretion of client governments have, to date, proven largely insufficient.

The Indian Connection: Pegasus shadows loom large over democracy

The NSO Group’s activities, as detailed in the U.S. court proceedings and prior investigations, have a significant and alarming Indian connection. Court documents related to the Meta lawsuit revealed that India was the second-most targeted country in the 2019 WhatsApp hacking campaign, with over 100 Indian users identified as victims. The list of those targeted in India reportedly included journalists, human rights activists, lawyers, and politicians, mirroring the global pattern of Pegasus deployment against civil society figures rather than solely against criminals and terrorists as NSO Group claims.

These findings were amplified by the Pegasus Project revelations in 2021. This collaborative investigative effort by international media organizations, based on a leaked list of potential surveillance targets, indicated that around 300 phone numbers in India were of interest to NSO’s clients. The Indian list controversially  included serving ministers, prominent opposition leaders such as Rahul Gandhi, political strategists like Prashant Kishor, numerous journalists including Siddharth Varadarajan of The Wire, activists such as Umar Khalid, a former Election Commissioner, Ashok Lavasa, who had flagged poll code violations by the Prime Minister, and even sitting Supreme Court judges.

Amnesty International’s Security Lab has conducted forensic investigations that further substantiate these concerns. Their findings confirmed repeated targeting of Indian journalists. Siddharth Varadarajan, for instance, was found to have been targeted with Pegasus in 2018 and then again in October 2023. Another journalist, Anand Mangnale, South Asia Editor at The Organised Crime and Corruption Reporting Project (OCCRP), was targeted in August 2023 with a sophisticated zero-click exploit delivered via iMessage while he was reportedly working on a story about alleged stock manipulation by a large Indian conglomerate.

In response to the widespread outcry following the Pegasus Project revelations, the Supreme Court of India intervened in October 2021. Recognising the gravity of the allegations, the Court constituted an independent technical committee, headed by retired Supreme Court Justice R.V. Raveendran, to investigate the claims of Pegasus surveillance.  This committee submitted its report in a sealed cover to the Supreme Court in August 2022. Out of the 29 phones analysed by the Technical Committee, just five showed signs of malware — and even in those cases, there was no clear evidence linking it to Pegasus, as per the three-part report presented to the Court by the Justice R.V. Raveendran committee. Crucially, the CJI NV Ramana (as he was then) also made a significant observation: the Indian government “did not cooperate” with the technical committee’s investigation.

The full contents of the technical committee’s report remain sealed and have not been made public.

The Indian government’s official stance on the Pegasus allegations has been one of consistent denial of any unauthorised interception by its agencies. Statements from the Ministry of Electronics and Information Technology (MeitY), including those made by Union Minister Ashwini Vaishnaw, have dismissed the reports as attempts to “malign Indian democracy and its well-established institutions”. The government has asserted that existing legal frameworks, such as the Indian Telegraph Act and the Information Technology Act, provide sufficient checks and balances against illegal surveillance. However, MeitY, through CERT-In (Indian Computer Emergency Response Team), was reportedly informed by WhatsApp about the Pegasus breach affecting Indian users as early as September 2019, raising questions about the timeliness and transparency of the government’s subsequent public responses.

More often than not, the government has invoked “national security” as a reason to avoid confirming or denying the procurement or use of Pegasus spyware. During Supreme Court hearings, the Solicitor General of India argued that “terrorists cannot claim privacy rights.” This sentiment was, to some extent, echoed by one of the judges who remarked, “What is wrong if the country is using spyware?… Using against whom is the question?”. These statements have fuelled concerns among civil liberties advocates that the national security argument is being used to shield potentially unlawful surveillance activities from scrutiny.

The Indian government’s persistent invocation of “national security” to sidestep transparency regarding Pegasus use, particularly its documented non-cooperation with the Supreme Court-appointed technical committee, presents a stark contrast to the detailed evidence and rigorous judicial scrutiny observed in the U.S. legal proceedings against NSO Group. While national security is undeniably a legitimate concern for any state, its deployment as a blanket justification to prevent any meaningful disclosure about the use of highly invasive spyware against a wide range of citizens—including journalists, opposition figures, and potentially even members of the judiciary—raises profound questions about democratic accountability and the potential for abuse of power. The U.S. verdict, which meticulously details the illegal hacking mechanisms employed by NSO, makes the Indian government’s opaque and defensive stance increasingly difficult to sustain, as the spyware tool itself has now been judicially recognized in a foreign court as problematic and its vendor held liable for its misuse.

The repeated and continued targeting of journalists in India, as confirmed by forensic analysis even after the initial Pegasus revelations and the Supreme Court’s intervention, suggests a brazen and deeply concerning attempt to suppress dissent and investigative journalism. When journalists investigating sensitive matters, such as allegations of financial misconduct by powerful entities, find themselves under state-sponsored surveillance, it sends a potent chilling message to the entire media community. This transcends individual privacy violations; it constitutes an assault on the freedom of the press, a cornerstone of any functioning democracy. The persistence of such targeting implies that the perpetrators feel a disturbing sense of impunity within the domestic Indian context.

The situation also presents a tale of two judiciaries and, by extension, two executive approaches. The proactive stance of the U.S. judiciary in holding NSO Group accountable, significantly aided by a well-resourced corporate plaintiff like Meta, contrasts sharply with the Indian Supreme Court’s current position. The Indian Court appears to be treading a cautious path, attempting to balance national security claims against individual queries about surveillance, a task made more challenging by the executive branch’s non-cooperation. While the U.S. case benefited from Meta’s considerable resources and clear legal standing as an aggrieved party whose platform was abused, in India, the petitioners are often individuals, under-resourced rights groups, or journalists. The Indian Supreme Court’s cautious handling of the sealed technical committee report and the government’s steadfast refusal to cooperate highlight systemic challenges in achieving accountability domestically. The fact that MeitY was reportedly informed of the WhatsApp breach affecting Indian users as far back as September 2019, yet the government’s public narrative and actions did not appear to reflect this urgency or information, further underscores this accountability deficit. The U.S. verdict might provide Indian petitioners with stronger international legal and moral backing, but overcoming domestic institutional hurdles remains a formidable challenge.

VI. Echoes in Delhi: How the US verdict resonates in India’s Pegasus saga

The U.S. District Court’s comprehensive findings against NSO Group and the subsequent multi-million dollar damages award are poised to have significant reverberations in India, where the Pegasus spyware controversy continues to simmer. The U.S. court’s meticulous detailing of NSO’s illegal activities and the intrusive nature of Pegasus spyware provide substantial evidentiary and moral support for petitioners currently before the Indian Supreme Court. Indeed, during hearings in April 2025, Senior Advocate Kapil Sibal, representing one of the petitioners, explicitly cited the U.S. judgment, highlighting the court’s observation that India was among the countries where WhatsApp users were targeted by Pegasus. The detailed revelations from the U.S. trial concerning NSO Group’s operational methods and its direct involvement in deploying the spyware can be leveraged to counter claims that the spyware’s use is solely determined by client governments without NSO’s active participation or knowledge.

This international legal precedent is likely to fuel fresh and more vociferous demands for transparency and accountability from the Indian government. Opposition parties, such as the Congress party which has already called for Supreme Court-monitored probes based on U.S. court revelations , along with civil society organizations; and various digital rights advocates, are expected to intensify their calls for the Indian government to: first, unequivocally state whether it procured and deployed Pegasus spyware; second, consent to a truly independent and transparent investigation into the allegations; and third, make the Supreme Court-appointed technical committee’s full report public, allowing for informed public debate and scrutiny.

The U.S. judgment also presents a formidable challenge to the broad “national security” argument frequently invoked by the Indian government to justify opacity surrounding the use of Pegasus. By laying bare the illicit hacking mechanisms of Pegasus and its deployment against ordinary citizens such as journalists and activists, the U.S. court’s findings weaken the credibility of using an all-encompassing national security pretext to shield such surveillance from any form of oversight in India. If the tool’s mode of operation is deemed illegal by a U.S. court when used against similar profiles of individuals, its alleged use in India under a vague and unsubstantiated national security rationale becomes increasingly questionable and harder to defend both domestically and internationally.

Ultimately, the U.S. verdict indirectly places India’s own democratic institutions—particularly its judiciary and parliamentary oversight mechanisms—under a critical test. If a foreign court, driven by a corporate plaintiff, can achieve a significant degree of accountability against the NSO Group, the question inevitably arises: why are Indian institutions apparently struggling to achieve similar accountability regarding the use of Pegasus within India’s borders? This focuses uncomfortable attention on the independence, efficacy, and resilience of these institutions when confronted with executive power and sweeping claims of national security. The Indian Supreme Court’s next steps in the Pegasus matter, with hearings scheduled for July 30, 2025, will be very closely watched in this context.

Conclusion

The broader struggle against illicit surveillance and the misuse of powerful espionage technologies is far from over. It requires sustained, multifaceted efforts from technology companies committed to protecting their users, from a vigilant and courageous civil society, from international bodies striving to establish global norms, and, most crucially, from national governments willing to uphold the rule of law and safeguard fundamental human rights in the increasingly complex digital age. The path to effectively reining in the global spyware menace is undoubtedly long and arduous, but the Meta-NSO verdict offers a crucial milestone, a tangible victory for a future where digital technologies empower rather than oppress.

(The author is part of the legal research team of the organisation)

Related:

Pegasus case: SC appointed Committee says GoI not cooperating

Pegasus scandal: Did GoI engage in an elaborate cover-up?

State can’t get free pass every time spectre of “national security” is raised: SC in Pegasus case

The post US court slams spyware giant NSO with $168M Fine: a reckoning for Pegasus and implications for India appeared first on SabrangIndia.

In its order, the court directly addressed the question of whether caste discrimination bans are facially neutral and categorically held that they are. The court also addressed whether such a caste-discrimination ban is, at all, an infringement on Hindu religious practices (this is an argument made by some Hindu nationalist groups). The court significantly that they were not an infringement.

Taking this further (whether caste-discrimination bans in any way discriminate against any religious group or otherwise violate the Establishment Clause), the Court held that they do not. What is important to note is the fact that while caste and religion do, sometimes, intersect, this does not mean that casteism cannot be regulated. The United States District Judge, Richard A Jones passed the order on March 8, 2024.

On February 21, 2023, the Seattle City Council voted to approve Council Bill (CB) 120511 “relating to human rights; including protections against discrimination based on an individual’s caste.”[1]

The plaintiff, one Bagal, in this matter (petitioner) is a resident of North Carolina who has lived in Seattle since 1985 and he filed this legal challenge of May 11, 2023. He challenged the Seattle Council’s decision to expand its anti-discrimination laws by adding “caste” as a protected class.

It was right-wing Hindutva nationalists (read supremacists)that have been at the forefront of the pro-caste push in the US; first actively opposing the #Equality Lab’s push in Seattle and through such legal challenges. This is a huge setback for them it is also a positive encouragement to Dalit and human rights groups who have been challenging the brutality of caste exclusion through rationality and morality, combined.

The eight-page judgement dismisses the plaintiff Bagal’s case on several counts not least being that the “injuries” envisaged by him are purely hypothetical. On examination before the court was whether the plaintiff in anyway suffered an injury that is concrete, particularised, and actual and imminent; that such an injury was caused by the defendant (in this case the Seattle City Council) and that such an injury would be addressed by judicial relief.

The judgement is succinctly argued citing precedents.

First Amendment Standing

First, Plaintiff argued that incorporating “caste” into existing anti-discrimination laws ipso facto creates a stigma, levelled towards a specific and insular minority group, namely members of the Hindu religion. That stigmatization, Plaintiff reasons, violates the First Amendment’s command that no laws should exist “respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” [2]

The Plaintiff premises their Free Exercise Clause and Establishment Clause standing on the theory that the word “caste” produces a cognisable injury consisting of prejudice towards the Hindu religion and members thereof.² Unsurprisingly, Plaintiff’s alleged injuries pattern this distinction.

The Court examined the prima facie burden of proof in free exercise cases which is upon a plaintiff to demonstrate that such a ban is, in fact, “burden upon religion.

Citing judgements like School Dist. of Abington v. Schempp, 374 U.S. 203, 223 (1963), the Court notes that free exercise jurisprudence draws a distinction between those governmental actions that actually burden the exercise of religion, and those that result in the mere exposure to outlooks at odds with the internal perspectives of a religion.[3]

Relying on several other precedents including see also Grove v. Mead Sch. Dist. No. 354, 753 F.3d 1528, 1543 (9th Cir. 1985) (Canby, J., concurring) the District US Court, on March 8, held that (“Governmental actions that merely offend or cast doubt on religious beliefs do not on that account violate free exercise.”)

“An actual burden on the profession or exercise of religion is required.” Here, the Plaintiff fails to make this prima facie showing. Indeed, Plaintiff simply does not allege they are burdened, in any manner, from practicing their faith. Furthermore, the plain text of the Ordinance does not lend itself to such an interpretation.[4]

The Court also after substantial examination holds that the facts on record do not in any way point to cognizable injury under the Free Exercise Clause. Therefore, having failed to allege a cognizable injury, the Plaintiff is held to lack any de facto standing to assert a Free Exercise challenge to the Caste Discrimination Ordinance.’

Interrelationship between the Establishment Clause & Free Exercise Clause: US

The interrelationship of the Establishment Clause and the Free Exercise Clause was first touched upon in Cantwell v. State of Conn., 310 U.S. 296 (1940). The judgement asserts that, “the [First] Amendment embraces two concepts: freedom to believe and freedom to act.”

In this case, unsurprisingly, Plaintiff’s had also alleged “injuries.”

Dealing with this aspect further and citing Grove v. Mead Sch. Dist. No. 354, 753 F.3d 1528, 1543 (9th Cir. 1985), the March 8 judgement quotes, (“Governmental actions that merely offend or cast doubt on religious beliefs do not on that account violate free exercise. An actual burden on the profession or exercise of religion is required.”).

In conclusion, the Court holds that the plaintiff fails to make the case for any prima facie infringement.

Similarly further examining the plaintiff’s Establishment Clause claim, the Judgement deals with this and then unravels it.

“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”[5]

Fundamentally, Plaintiff’s reasoning is that the City of Seattle’s involvement on an issue of equal importance to practitioners of a certain religion becomes, as a consequence, activity in favour or opposition to that religion. And that, because the City of Seattle opted to disfavour caste-based forms of discrimination, a fortiori it condemned all notions of caste as it was understood by any religion.

The Court dismisses this argument stating that “this logic proves too much…”

“And even assuming, arguendo, that the Ordinance does condemn notions of caste as is believed by a certain religion that does not constitute activity in support or disparagement of that religion. For instance, birth control is a topic that involves both religious beliefs and general welfare concerns. And yet, no court has ever held that government approval of birth control violates the Establishment Clause.”

“To the contrary. The Supreme Court summarily rejected an argument that the limiting of Medicaid funds for abortions violated the establishment clause “because it incorporates into law the doctrines of the Roman Catholic Church” [6]

“As the Court has reasoned, “although neither a State nor the Federal Government can constitutionally ‘pass laws which aid one religion, aid all religions, or prefer one religion over another,”[7], “it does not follow that a statute violates the Establishment Clause because it ‘happens to coincide or harmonize with the tenets of some or all religions.”[8]

“Similarly, this Court cannot conclude that the Ordinance is unconstitutional under the First Amendment simply because it coincides or otherwise conflicts with a religious tenet. It is not enough, in other words, that the anti-caste legislation strikes members of a religion as reflecting poorly on their religious beliefs.[9] In this case, the Ordinance’s principal effect is not to endorse a religion, but simply to bolster local anti-discrimination laws.[10] Any coincidental reference to a shared phenomenon (such as caste) is secondary, if not wholly, immaterial. Accordingly, the Plaintiff’s standing to assert a Free Exercise challenge to the Ordinance is rejected by the Court.

Arguments on the 14th Amendment

Thereafter the Court deals with another set of arguments in the plaint. The Plaintiff contends that the Ordinance violates the Equal Protection Clause of the Fourteenth Amendment because it “unfairly singles out and targets” and “treat[s] disparately people based on their ancestry, creed, national origin, and religion.”

“American civil rights jurisprudence is deeply familiar with notions of anti-caste legislation, and it would be anachronistic to suggest that modern anti-discrimination laws cannot rediscover these historical practices or that doing so necessarily refers to contemporary (religious) usages of the term Equal protection analysis focuses on whether the government has classified individuals on the basis of impermissible criteria.

“Governmental actions that classify persons by race or that are facially neutral but motivated by discriminatory racial purpose are subject to strict judicial scrutiny.[11] However, legislative classifications typically survive judicial scrutiny so long as they are rationally related to a legitimate governmental interest.[12]

“Under these guiding principles,” states the US District Court, “the Seattle City Ordinance easily avoids strict scrutiny.”

“Nowhere does the text of the Ordinance make use of prohibited classifications. Rather, the Ordinance is facially neutral and of general applicability. Moreover, wholly absent from Plaintiff’s complaint are any facts suggesting that the legislative drafters were actually motivated by racial or ethnic animus.

The judgement goes further. The Court states that nowhere does the Plaintiff’s complaint “plausibly allege that the City of Seattle has applied the Ordinance in a discriminatory manner.[13] Nor does it suggest any enforcement has occurred pursuant to the Ordinance.⁵

Anti-Caste Ordinance is Constitutional: US Court

^“Finally, the Ordinance easily passes constitutional muster given its status as a legislative enactment which is rationally related to a legitimate governmental interest of preventing discrimination.[14]

This judgement cited holds that Title VII’s purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions”[15]

Therefore, the Court also states that “It would work a great irony for an anti-discrimination Ordinance that is de jure subsumed within the current Equal Protection framework to be found unconstitutional under that same provision.

Given then that the Ordinance neither discriminates on its face nor runs afoul of the discriminatory impact and intent principles undergirding the Fourteenth Amendment, the Court needs only assess whether Plaintiff’s remaining argument is sufficient to confer any standing to the plaintiff.

During arguments the Plaintiff had argued that the very “spectre of enforcement under the Ordinance” is sufficient to lead to a “loss of reputation.” In this connection, the plaintiff re-emphasised his claimed First Amendment injury, namely that the Ordinance produces reputational harms.

The Court rejects these arguments stating that “abstract stigmatic injuries are insufficient to confer standing under the Fourteenth Amendment.”[16]

The injury of stigma confers standing “only to those persons who are personally denied equal treatment [by the challenged discriminatory conduct].”[17]

In conclusion, the Court holds decisively and fundamentally that the Fundamentally that the Plaintiff has failed to show a disparate impact or conduct motivated by racial or ethnic animus in the passage by the City of Seattle of the Anti-Caste Ordinance.

On facts, locus standi and first principles, the challenge by one Bagal to the Anti-Caste Ordinance was resoundingly rejected by the US District Judge Richard A. Jones on March 8, 2024.

This is one more step in a successful campaign by Indian American groups, Dalit groups and human rights groups to get a statute against Caste Discrimination in the US.

US Court order can be read here.

[1] On February 21, 2023, the Seattle City Council voted to approve Council Bill (CB) 120511 “relating to human rights; including protections against discrimination based on an individual’s caste. . .” Ordinance 126767 (“Ordinance”).

[2] The interrelationship of the Establishment Clause and the Free Exercise Clause was first touched upon in Cantwell v. State of Conn., 310 U.S. 296 (1940). According to the Court, “the [First] Amendment embraces two concepts: freedom to believe and freedom to act.” Id. at 303– 04

[3]Further citations include See Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223 (1963) that held that “it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion.”

[4] The Ordinance makes it unlawful to discriminate based on caste: (1) in the workplace, (2) in places of public accommodation, (3) in landlord-tenant transactions; (4) in the use or enjoyment of public parks and in other facets of public life. Ordinance 126767.

[5] Larson v. Valente, 456 U.S. 228, 244 (1982).

[6] Harris v. McRae, 448 U.S. 297, 319 (1980).

[7] quoting Everson v. Board of Education, 330 U.S. 1, 15 (1947)

[8] quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)

[9] See Harris, 448 U.S. at 319.

[10] The anti-caste thrust of the Ordinance evokes the statement of John Marshall Harlan in Plessy v. Ferguson that there is no caste in the United States, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), as well as statements by framers of the Fourteenth Amendment that the amendment was designed to prohibit practices that reduce groups to the position of a lower caste. See Cong. Globe, 39th Cong., 1st Sess. 674 (1866) (remarks of Senator Sumner) (the proposed amendment would abolish “oligarchy, aristocracy, caste, or monopoly with particular privileges and powers.”) American civil rights jurisprudence is deeply familiar with notions of anti-caste legislation, and it would be anachronistic to suggest that modern anti-discrimination laws cannot rediscover these historical practices or that doing so necessarily refers to contemporary (religious) usages of the term.

[11] See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230, (1995); see also Washington v. Davis, 426 U.S. 229, 247 (1976) (describing the notion of a disparate impact from a facially neutral statute).

[12] (City of Cleburne v.Cleburne Living Ctr., 473 U.S. 432, 440 (1985)

[13] In addition, the Court notes that mere speculation does not suffice to render a matter justiciable under the Equal Protection Clause. See e.g., Citizens for Fair Representation v. Padilla, 815 F. App’x 120, 123 (9th Cir. 2020) (holding that the plaintiffs lacked standing to assert an Equal Protection claim because they made only speculative allegations regarding unknown future actions and failed to show a concrete harm based on race).

[14] See E.E.O.C. v. Fremont Christian Sch., 781 F.2d 1362, 1368 (9th Cir. 1986)

[15] (citing Braunfeld v. Brown, 366 U.S. 599, 606 (1961)); see also Witt v. Dep’t of Air Force, 527 F.3d 806, 817 (9th Cir. 2008)

[16] (Citations: See Allen v. Wright, 468 U.S. 737, 755 (1984); see also Kumar v. Koester, No. 2:22-cv-0755-RGK-MAA, 2023 WL 4781492, at *3 (C.D. Cal. 2023) (Hindu university professors lacked standing to assert an equal protection challenge to a university’s antidiscrimination policy when they merely alleged that the policy impermissibly stigmatized Hindu practitioners).

[17] Heckler v. Mathews, 465 U.S. 728, 739–40 (1984).

Related:

Seattle becomes first US city to ban caste discrimination, what does this mean?

Ban caste discrimination: Ambedkar Intl Center to Seattle City Council

Seattle introduces anti-discrimination legislation

Ban caste discrimination: Ambedkar Intl Center to Seattle City Council

City of Seattle passes resolution against CAA-NRC

The post US Court upholds Seattle ban on caste-based discrimination; rejecting claims of infringement on “Hindu religious practice” appeared first on SabrangIndia.