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Case Comment: Manohar Lal Sharma V. Union Of India (Pegasus Case) 2021

Case Comment, Publications

Citation: W.P. (Crl) No. 314/2021,  (2021) 10 SCC 1 

Court: Supreme Court of India

Bench: Hima Kohli, Surya Kant, N.V.Ramana

Date of Judgment: 27th October, 2021

Facts

The Pegasus case originated as a worldwide collaborative investigation by global media organisations and by Amnesty International in July 2021, called the “Pegasus Project” collectively. The investigation also identified that over 300 Indian phone numbers, including those belonging to journalists, opposition leaders, activists, lawyers, public officials, and even the sitting Judges of the Supreme Court, were identified as potential surveillance targets through the Pegasus spyware.

The Pegasus was developed by an Israeli cyber-intelligence company named NSO Group Technologies and is essentially a military-grade surveillance product that can, without detection, extract data from targeted mobile phones, activate microphones and cameras and intercept communications. 

The media outbreak caused widespread uproar both nationally and internationally due to its implications on privacy, press freedoms, and the democratic practices of India. Those suggested to have fallen victim to surveillance include opposition leaders like Rahul Gandhi, political operatives like Prashant Kishor, journalist Siddharth Varadarajan, and human rights activists. The writ petitions were filed in front of the Honourable Bench at the Supreme Court, including one by advocate Manohar Lal Sharma that called for an independent, court-monitored investigation into the surveillance. The petitioners stated that, assuming that surveillance was carried out by the Indian Government, it would be unconstitutional and infringe their fundamental rights under Article 21. 

The Union Government made no Reference to whether or not it has used Pegasus, claiming national security concerns, and contested filing a detailed Affidavit regarding the case. The evasive position of the state formed a substantial part of the dispute during the proceedings. The application asked for accountability, transparency, and independent investigation.

ISSUES RAISED

  1. Whether the alleged side’s use of Pegasus spyware amounted to a violation of the fundamental rights to privacy, dignity and free speech under Articles 21 and 19(1)(a) of the Constitution?
  2. Whether the Government’s refusal to disclose any facts, citing national security, is justifiable in a matter which involves potential constitutional violations?
  3. Whether an independent judicially monitored committee be constituted in the face of governmental inaction?
  4. What should be the permissible limits of judicial oversight in domains involving sensitive information linked to national security?

 CONTENTION

Petitioners’ Submission

The petitioners in this case contended that all forms of surveillance, without legislative sanction and judicial approval, infringe clearly on their right of privacy, as privacy is a right under Article 21 declared by the Court in the landmark case of Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 noting the very need of persons, i.e. their right to privacy.

They also maintained that the Pegasus malware was a far-reaching and complicated tool, and if a state actor deployed the spyware – something they believe was true – it could never be justified in a democracy.

Moreover, the targeting of journalists and dissenters was presented as a blatant assault on free expression and press freedom, and was therefore infringing Article 19(1)(a). They (the petitioners) emphasised the incredible importance of independent investigation to protect the integrity of democratic institutions like those of our Country.

Respondents’ Submissions (Union of India):

The Union of India, on the other hand, replied that it could not confirm or deny the purchase or use of Pegasus for reasons of national security. The Government stated any official confirmation or disavowal would jeopardise its “national security infrastructure”. They stated that they would be prepared to create a committee of technical experts to investigate these allegations as long as it kept the control in the hands of the Government.

But the petitioners rejected the response offered by the Government, arguing it was controlled by the executive, thus providing no independence and no credibility, and they wanted to see a judicial investigation for independence.

RATIONALE

The Supreme Court delivered its judgment on October 27, 2021, which was presided over by a bench comprising Chief Justice N. V. Ramana, Justice Surya Kant, and Justice Hima Kohli. The Court stated that it was mindful of the serious nature of the allegations, which could affect the rights of citizens and democratic institutions at large.

The Court also stated that the “mere invocation of national security by the State does not render the Court a mute spectator”.  The Court noted that the State cannot be handed a “free pass” whenever national security is invoked. The Court acknowledged the right to privacy, which the Court stated cannot be infringed regardless of the circumstances without subjecting the infringement to the test of legality, necessity and proportionality in light of the judgement in Puttaswamy.

Also, the Court accepted that the refusal of the Union Government to either file a detailed affidavit or to provide any clear facts to enable judicial determination was intolerable. The Court expressed that this stance was an obstacle to judicial review of the actions taken by the executive and denied citizens the right to obtain a remedy against arbitrary executive action. The Court did not consider the reasons cited by the Union Government for not affording citizens the dignity and rights that exist for them under the Constitution and stated that, as the guardian of fundamental rights, it is entitled to expect the very best from the Union Government, even with forces of national security engaged.

For this purpose, the Court formed an independent technical committee that was overseen by Justice R.V. Raveendran, a former Supreme Court judge, with the assistance of respected cyber experts. The terms of reference included examining whether Pegasus had been used on any citizen of India, and if any government agency authorised its use and if such surveillance was legally justified.

The Court also reiterated that protection of citizens’ rights must be paramount and that surveillance technologies cannot be allowed to function without constraints. It further reiterated the necessity of transparent governance and institutional accountability.

DEFECTS OF LAW

  1. Poor Regulation of Surveillance: The current Indian legal framework does not provide a definitive statutory regulation to define and supervise digital surveillance. The Indian Telegraph Act, 1885 and the Information Technology Act, 2000, both provide power for the executive with minimal oversight, with no requirements for judicial sanction, and no data protection framework. The lack of a legal standard aimed at contemporary instances of surveillance has created a permissive environment for abuse.
  2. Absence of Judicial Oversight: The difference between the UK and the US and India is that judicial approval is required to use intrusive surveillance in the former two countries. In India, there is executive discretion with little oversight. Because Singapore does not require judicial oversight in a statute, law enforcement and intelligence can surveil individuals without any checks and balances.
  3. No Accountability Mechanism: There is no independent statutory authority which monitors surveillance in India. The review committees under the Indian Telegraph Rules are a toothless bureaucracy solely under executive authority with no effective checks and balances. 
  4.  Misuse of National Security Exception: The refusal of the Government to confirm or deny the use of Pegasus based on national security when responding to questions in Parliament to conceal unpleasant truths highlights a systemic problem, which shows the national security exception can be routinely used to stifle legitimate questions and concerns, avoiding legality/accountability. Courts need to develop jurisprudence to delineate when and how national security may be relied upon. 
  5.  Delayed Redressal: The Court did act, but ultimately, my submission as a scholar is that Lack of expedient and proactive legal responses, allowed delayed action, dispiriting responsiveness to technology-facilitated human rights causation can lead to a culture of delay and inaction. There is no specific statute on spyware and malware tools; this certainly compounds the problem.

INFERENCE

The Pegasus spyware controversy marks a watershed moment in Indian constitutional and technology law. It is evident from this case that the Supreme Court is unequivocal in its stance that even the security of the nation can never trump the fundamental rights of liberty, freedom of speech and expression, equality, and privacy provided under the Constitution of India. The Court’s insistence on transparency and accountability makes it abundantly clear that state surveillance must exist within the boundaries of the Constitution.

Although the establishment of an expert committee is a positive sign, its sanctioning order lacked public disclosures and avenues for penalties and remedial actions. Nevertheless, the case has ignited national conversation on the surveillance and data privacy reforms required to ensure the constitutional rights are brought into actualisation in society.

However, the judgement provoked concerns regarding a dizzying array of issues in terms of India’s lack of statutory oversight regime over surveillance, ambiguous exceptions for security in terms of national security provisions, and lack of any substantive privacy law ultimately endangered citizens, their rights to privacy and civil liberties and the judiciary’s role cannot remain merely symbolic in terms of stimulating, or continuing legislative influence.

As India embarks on the consequences of a new Digital India Act and Digital Personal Data Protection Act, there are firmly established equality principles in the right to feel safe, where accountability is put into practice in terms of legality, necessity, proportionality, and independent bodies overseeing decisions. This case has reaffirmed the role of the judiciary in ensuring that civil liberties will be protected in an age where the technology at governments’ disposal is constantly escalating and leading to the creation of a constitutional framework for accountability in an era of increasing technical surveillance and rights issues.

References

Author: Priyadarshini Chakraborty

College: Jogesh Chandra Chaudhuri Law College