1.FACTS:
In July 2021, a global investigative report called the Pegasus Project was published by a group of media houses, coordinated by the non-profit group Forbidden Stories along with Amnesty International. The project involved 17 news organizations worldwide, including The Wire from India. This report brought to light the possible misuse of Pegasus spyware across many countries, including India.
Pegasus is a spyware tool developed by the Israeli company NSO Group. It is sold only to governments and is designed to help track criminals and terrorists. However, the Pegasus Project revealed that this tool was being used on a much larger scale and often on individuals who were not criminals including journalists, human rights defenders, political leaders, academics, and lawyers.
In India, around 300 phone numbers were found on a leaked list, suggesting they were possible surveillance targets. Names included politicians like Rahul Gandhi, journalists like Siddharth Varadaraian, Paranjoy Guha Thakurta, and even officials from the Election Commission and judiciary. The presence of these names created widespread fear that the government was using Pegasus to spy on its critics and opponents.
Soon after this news broke out, multiple petitions were filed before the Supreme Court of India by citizens, activists, journalists, and even some public interest litigants. They asked the Court to order an independent investigation into the matter, alleging that such surveillance violates fundamental rights guaranteed by the Indian Constitution. The petitioners argued that this surveillance was a direct violation of the right to privacy as laid down by the Supreme Court in the Justice KS. Puttaswams v. Union of India, (2017) 10 SCC 1, where privacy was declared a fundamental right under Article 21.
The Union Government responded by refusing to confirm or deny whether it used Pegasus, citing national security concerns. It avoided giving a detailed response and did not file a full affidavit, which raised further concerns.
Recognizing the serious nature of the allegations and the government’s silence, the Supreme Court passed an order on October 27,2021, forming an Independent Expert Committee under the supervision of retired Supreme Court judge Justice R.V. Raveendran. This committee was tasked with finding out:
- Whether Pegasus spyware was used in India
- Who authorized the use (if any)
- Whether the rights of Indian citizens were violate.
The case was registered as Manohar Lal Sharma v. Union of India, (2021) 10
2. ISSUES RAISED
- Whether the alleged use of Pegasus spyware violated the fundamental right to privacy under Article 21 of the Constitution.
- Whether the State can avoid judicial scrutiny by citing national security.
- Whether there should be a court-monitored independent investigation into the matter.
- Whether the existing surveillance laws in India are sufficient to protect citizens’ rights.
- Whether the refusal to answer questions about Pegasus reflects a lack of transparency in governance.
3. CONTENTIONS
Petitioners` Arguments:
Violation of Privacy: The petitioners said that surveillance through Pegasus was done without any legal process or the consent of the people being targeted. This goes against the principles laid down in the Puttaswamy judgment, where privacy was held to be a fundamental right.
Attack on Free Speech: Journalists and opposition leaders said that being under watch or even the fear of being watched limits heir ability to speak freely or report independently. This creates a chilling effect on free speech and democracy.
No Legal Basis or Oversight: They argued that there was no proper law or court supervision that allowed this kind of surveillance, making it complete illegal.
Demand for Independent Probe: Petitioners asked for a probe to be conducted not by the government itself, but by an independent committee, to ensure transparency and fairness.
Misuse of Power: They expressed concerns that state machinery was being used to spy on critics and dissenters, which is a misuse of executive power.
Government’s Arguments:
National Security: The government claimed that due to national security concerns, it could not say whether it used Pegasus or not. It said that discussing such things publicly could compromise security operations. Adequate Legal Framework Exists: The government stated that laws like the Telegraph Act, 1885 Section 5(2) and Information Technology Act, 2000 (Section 69) already allow legal interception and that it was following the law.
No Concrete Proof: The government pointed out that petitioners did not provide technical proof that Pegasus was actually used on their devices.
Offer to Set Up a Committee: The government said it was willing to set up its own internal committee to look into the matter. However, the Court rejected this offer as being biased.
4. RATIONALE (REASONING OF THE COURT
The Supreme Court started by emphasizing that Right to Privacy is a fundamental right under Article 21 of the Constitution, as affirmed in the Puttaswamy judgment.
The Court acknowledged that while national security is important. the government cannot use it as a shield to avoid answering questions or accountability. It made it clear that even national security claims must be tested under the law and cannot override constitutional rights blindlv. The Court said that the petitioners had made a prima facie (at first glance) case that their phones may have been targeted, and that the government had not provided any proper denial or explanation. Instead of helping the Court get to the truth, the government was avoiding the issue.
The judges also clarified that they were not interested in compromising national security. But at the Same time, they said judicial review the power of the courts to check the actions of the government cannot be blocked just by saying “national security.”‘
Because of this, the Court felt that an independent investigation was necessary. It formed an Expert Committee made up of cybersecurity experts ınd overseen by Justice R.V. Raveendran. The Court gave the committee full authority to:
- Examine the devices of alleged victims
- Find out whether spyware was used
- Suggest what steps should be taken to protect citizens in the futures
This judgment reinforced the idea that no one, not even the government is above the Constitution.
5. DEFECTS OF LAW
- No clear privacy law: India still does not have a strong and specific law to protect personal data and digital privacy. Although a draft Personal Data Protection Bill has been| discussed in Parliament, it has not yet become law.² This leaves a gap in legal protection against misuse of personal information
- Outdated surveillance laws: The two main laws used for surveillance in India are:
Indian Telegraph Act, 1885: Section 5(2) allows the government to intercept calls and messages if it is in the interest of public safety or national security. However. this law was made in the colonial era and does not cover modern digital communication like apps, emails, or encrypted chats
Information Technology Act, 2000: Section 69 gives the central and state governments the power to intercept, monitor, or decrypt any information in any computer resource for reasons like national security, public order, or to prevent crimes. But this section is very broad and does not have strict safeguards to protect individual rights
- No requirement for court approval: Both the Telegraph Act and the IT Act allow surveillance to be authorized by senior government officials. There is no legal requirement to get prior permission from a judge or to inform the person being watched. This makes the process secretive and increases the chances of misuse.
- Lack of transparency and accountability: There is no legal duty on the government to publish reports or data about how many surveillance orders were issued, who was affected, and why. This secrecy creates fear among citizens and weakens public trust
- Overuse of “national security”: The term “national security” is often used by the government to avoid answering questions, even in court. But there is no clear definition of what counts as national security in law. This makes it easy to use this excuse to hide unlawful or questionable surveillance activities. The Supreme Court in the Pegasus case stated that national security cannot be used as a reason to escape judicial review.
6. INFERENCE
The Pegasus case is a reminder that in a democracy like India, the rights of individuals must be protected, even when technology becomes powerful. The
Supreme Court played a key role in standing up for citizens and asking the government to be accountable.
This case showed that privacy is not just a legal idea but a real right that affects people’s lives. If people feel they are always being watched, they can no longer express themselves freely. That hurts democracy.
Even though the Expert Committee’s final report could not confirm everything because of lack of cooperation from the government. the case pushed for more public awareness and legal change
It proved that:
The Constitution protects people against misuse of power
The courts will step in if the government tries to avoid questions
India urgently needs stronger privacy laws and surveillance reform
The case also inspired people to demand more transparency from the State and raised the importance of data protection legislation, which is still missing in India.
In short, Pegasus v. Union of India (2021) became a landmark case – not because it gave a final answer, but because it defended the right to ask questions.
“In a constitutional democracy, the government cannot monitor its citizens secretly and refuse to be accountable. The law must always stand above surveillance”
CITATIONS
1. Forbidden Stories. The Pegasus Project. The Wire (July 18. 2021). https://thewire.in/pegasus.
2. The Personal Data Protection Bill, 2019, Bill No. 373 of 2019 (India)
3. Indian Telegraph Act, No. 13 of 1885, S.5(2) (India).
4. Information Technology Act, No. 21 of 2000,$ 69 (India)
5. Manohar Lal Sharma v. Union of India, (2021) 10 SCC 1.