2021 Supreme(SC) 628

SUPREME COURT OF INDIA
N.V. RAMANA, CJI., SURYA KANT, HIMA KOHLI, JJ.
MANOHAR LAL SHARMA – APPELLANT
VERSUS
UNION OF INDIA AND ORS. - RESPONDENTS
WRIT PETITION (CRL.) NO. 314 OF 2021, WRIT PETITION (CIVIL) NO. 826, 909, 861, 849, 855, 829, 850, 848, 853, 851, 890 OF 2021
DECIDED ON : 27-10-2021

IMPORTANT POINTS
(1) In matters pertaining to national security, scope of judicial review is limited – However, national security cannot be bugbear that Judiciary shies away from, by virtue of its mere mentioning.
(2) Right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy.
(3) Right to privacy is directly infringed when there is surveillance or spying done on an individual, either by State or by any external agency – Done by State, same must be justified on constitutional grounds.
(4) Public Interest Litigation (PIL) – Individuals should not file half-baked petitions merely on a few newspaper reports.

Headnote:

(A) Constitution of India – Article 32 – Pegasus Spying case – Petitions for independent investigation – Respondent Union of India should not take an adversarial position when fundamental rights of citizens are at threat – In matters pertaining to national security, scope of judicial review is limited – However, this does not mean that State gets a free pass every time spectre of “national security” is raised – National security cannot be bugbear that Judiciary shies away from, by virtue of its mere mentioning – Although Apex Court should be circumspect in encroaching upon domain of national security, no omnibus prohibition can be called for against judicial review – Respondent-Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to security of State, or when there is a specific immunity under a specific statute – However, it is incumbent on State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit – Respondent-Union of India must necessarily plead and prove facts which indicate that information sought must be kept secret as their divulgence would affect national security concerns – They must justify the stand that they take before Court – Mere invocation of national security by State does not render Court a mute spectator – There is a broad consensus that unauthorized surveillance/accessing of stored data from Phones and other devices of citizens for reasons other than nation’s security would be illegal, objectionable and a matter of concern – Technical Committee comprising of three members, including those who are experts in cyber security, digital forensics, networks and hardware, whose functioning will be overseen by Justice R.V. Raveendran, former Judge, Supreme Court of India, constituted to enquire/investigate into the matter. (Paras 46, 49, 52, 56, 57 and 62)

(B) Constitution of India – Article 21 – Right to privacy – An expanded meaning has been given to right to life in India, which accepts that “life” does not refer to mere animal existence but encapsulates a certain assured quality – We live in era of information revolution, where entire lives of individuals are stored in cloud or in a digital dossier – While technology is a useful tool for improving lives of people, at the same time, it can also be used to breach that sacred private space of an individual – Members of a civilized democratic society have a reasonable expectation of privacy – Privacy is not singular concern of Journalists or social activists – 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 – Right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy – Although declared to be inalienable, right to privacy cannot be said to be an absolute, as Indian Constitution does not provide for such a right without reasonable restrictions – As with all other fundamental rights, certain limitations exist when it comes to right to privacy as well – However, any restrictions imposed must necessarily pass constitutional scrutiny. (Paras 30, 31, 32 and 33)

(C) Constitution of India – Article 21 – Right to privacy – Right to privacy is directly infringed when there is surveillance or spying done on an individual, either by State or by any external agency – Done by State, same must be justified on constitutional grounds – In today’s world, information gathered by intelligence agencies through surveillance is essential for fight against violence and terror – To access this information, a need may arise to interfere with 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 – Considerations for usage of such alleged technology, ought to be evidence based – In a democratic country governed by rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following procedure established by law under Constitution – Surveillance and knowledge that one is under threat of being spied on can affect 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 freedom of press which is an important pillar of democracy – Such chilling effect on freedom of speech is an assault on vital public-watchdog role of press which may undermine ability of press to provide accurate and reliable information.(Paras 35, 36 and 39)

(D) Constitution of India – Article 32/226 – Public Interest Litigation (PIL) – Filing of – Parameters – Individuals should not file half-baked petitions merely on a few newspaper reports – Such an exercise, far from helping cause espoused by individual filing petition, is often detrimental to cause itself because Court will not have proper assistance in the matter, with burden to even determine preliminary facts being left to Court – This should not be taken to mean that news agencies are not trusted by Court, but to emphasize role that each pillar of democracy occupies in polity – News agencies report facts and bring to light issues which might otherwise not be publicly known – These may then become basis for further action taken by an active and concerned civil society, as well as for any subsequent filings made in Courts – But newspaper reports, in and of themselves, should not in ordinary course be taken to be readymade pleadings that may be filed in Court. (Para 43)

Facts of the case:

Some of the Writ Petitioners before this Court allege to be direct victims of the Pegasus attack, while others are Public Interest Litigants. They raise the issue of the inaction on the part of the Respondent-Union of India to seriously consider allegations raised, relating to the purported cyber attack on citizens of this country. Additionally, the apprehension expressed by some Petitioners relates to the fact that, keeping in mind NSO Group disclosure that it sold its Pegasus software only to vetted Governments, either some foreign government or certain agencies of the Respondent-Union of India are using the said software on citizens of the country without following the due procedure established under law. Therefore, to ensure credibility of the process, most of the Petitioners are seeking an independent investigation into the allegations. Pegasus suite of spywares can allegedly be used to compromise digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of target of the software. Once the software infiltrates an individual’s device, it allegedly has the capacity to access entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off. The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and end user of its products are “exclusively government intelligence and law enforcement agencies” as per its own website.

Findings of Court:

In this world of conflicts, it was an extremely uphill task to find and select experts who are free from prejudices, are independent and competent. Rather than relying upon any Government agencies or any, we have constituted the Committee and shortlisted expert members based on bio-data and information collected independently. Some of the candidates politely declined this assignment, while others had some conflict of interest. With our best intentions and efforts, we have shortlisted and chosen most renowned experts available to be a part of the Committee.

Result : Matter Listed for next hearing.