[Pegasus] National Security cannot be raised to get a free pass every time: Seven reasons why Supreme Court ordered expert probe

The argument of national security cannot be used to secure a free pass whenever a matter comes up for judicial review before the Supreme Court, the top court said on Wednesday in its judgment in the Pegasus snooping scandal (Manohar Lal Sharma v. Union of India) .

. Although the top court should be circumspect in encroaching the domain of national security, no omnibus prohibition can be called for against judicial review, the Court said.

. The judgment was delivered by a Bench of Chief Justice of India, NV Ramana and Justices Surya Kant and Hima Kohli .

. Below are the five important observations made by the Court in its judgment

. 1. National Security cannot be omnibus argument

National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning.

Security of State is definitely one of the grounds which allows Union of India to decline from providing information, the Court conceded.

"However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised," the Court emphasised.

In such cases, the Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns, the Court said.

The mere invocation of national security by the State does not render the Court a mute spectator, the apex court made it clear.

. 2. Privacy not the concern of journalists, social activists alone

The Court noted that we currently live in an era of information revolution, where the entire lives of individuals are stored in the cloud or in a digital dossier.

While technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach that sacred private space of an individual, the Court said.

In this regard, the Court said that privacy is not the singular concern of journalists or social activists alone and every citizen of India ought to be protected against violations of privacy.

It is this expectation which enables us to exercise our choices, liberties, and freedom, the Bench opined.

. 3. Restrictions on privacy have to pass Constitutional test

As with all other rights, right to privacy is also subject to reasonable restrictions.

However, any restrictions imposed must necessarily pass constitutional scrutiny, the Court held.

For instance, in today’s world, information gathered by intelligence agencies through surveillance is essential for the fight against violence and terror. To access this information, a need may arise to interfere with the right to privacy of an individual, provided it is carried out only when it is absolutely necessary for protecting national security/interest and is proportional, the Bench said.

"The considerations for usage of such alleged technology, ought to be evidence based. In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution," the judgment stated.

. 4. Surveillance can have chilling effect on press

The Court said that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship.

"This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech 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 judgment said.

. 5. No clear stand taken by the Respondent-Union of India

The Court said that the Central government was given ample opportunity to clarify its stand regarding the allegations raised, and to provide information to assist the Court regarding the various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware attack.

"We had made it clear to the learned Solicitor General on many occasions that we would not push the Respondent-Union of India to provide any information that may affect the national security concerns of the country. However, despite the repeated assurances and opportunities given, ultimately the Respondent-Union of India has placed on record what they call a “limited affidavit”, which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand," the Bench noted.

In such a scenario, mere invocation of national security cannot be a ground against judicial review, the Court said.

. 6. No specific denial by Centre

Pertinently, the Court noted that the Centre has not specifically denied the allegations raised by the petitioners against the government on use of Pegasus.

"There has only been an omnibus and vague denial in the “limited affidavit” filed by the Respondent-Union of India, which cannot be sufficient," the Court noted.

In such circumstances, we have no option but to accept the prima facie case made out by the petitioners to examine the allegations made, the Court stated.

. 7. Foreign entity spying on Indian citizens

The Court also took serious note of the petitioners' contention that foreign authority had spied upon Indian citizens.

Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance weighed with the Court in ordering an expert committee probe.

. [Read Judgment]

[Pegasus] National Security cannot be raised to get a free pass every time: Seven reasons why Supreme Court ordered expert probe

Murali Krishnan

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