Manohar Lal Sharma v. Union of India
Supreme Court of India, 27 October 2021, 3 judges
Finding a prima facie case on the alleged use of Pegasus spyware against Indian citizens, and rejecting the Union's bare plea of national security, the Court appointed its own Technical Committee overseen by Justice R.V. Raveendran to inquire.
Facts
Reports by Citizen Lab, and in July 2021 by a consortium of about 17 news organisations, alleged that the Pegasus spyware of the Israeli NSO Group, sold only to governments, had been used against Indians, including journalists, doctors, political persons and some court staff. Some petitioners claimed to be direct victims; others were public interest litigants. They sought an independent investigation. The Union of India filed only a "limited affidavit" denying the allegations and offered to set up its own expert committee. Despite repeated opportunities, it declined to file a detailed affidavit, saying disclosure would harm national security. Petitioners opposed a committee formed by the Union and sought a probe supervised by retired judges, and one petitioner sought an affidavit from the Cabinet Secretary.
Questions before the Court
- Did the material placed by the petitioners make out a case for the Court to examine the allegations of Pegasus spyware use on citizens?
- Could the Union of India avoid disclosing its stand to the Court merely by invoking national security?
- What was the appropriate remedy, and could the inquiry be left to a committee appointed by the Union of India?
What the Court held
- Surveillance or spying on an individual, by the State or an external agency, directly infringes the right to privacy, which K.S. Puttaswamy recognised as a constitutionally protected right. State surveillance must be justified on constitutional grounds, be necessary for national security and proportional, and indiscriminate spying cannot be allowed except with sufficient statutory safeguards, following the procedure established by law.
- Surveillance and the fear of being spied on can chill free speech; protection of journalistic sources is a basic condition of press freedom, so the allegations required the Court to find the truth.
- Judicial review in national security matters is limited, but the State does not get a free pass merely by raising national security. It must specifically plead, prove and justify on affidavit why information must be withheld; mere invocation does not make the Court a mute spectator.
- As the Union made only an omnibus and vague denial in its limited affidavit, the petitioners' prima facie case had to be accepted for examination.
- The Court declined the Union's offer to appoint its own committee, because allegations against the Union and State Governments meant that would violate the principle against bias. It constituted a three member Technical Committee, overseen by Justice R.V. Raveendran, with terms of reference to inquire and make recommendations.
Why it matters
The order holds that the State cannot defeat judicial scrutiny of alleged unlawful surveillance merely by invoking national security: it must plead and justify secrecy on affidavit. Relying on Puttaswamy, it states that surveillance by the State must be justified on constitutional grounds, necessary and proportional, links surveillance to the chilling of press freedom, and uses a Court appointed expert committee to find facts where writ jurisdiction cannot. It also cautions against public interest petitions based only on newspaper reports.
In the Court's words
Copied from the official judgment; each passage links to its page.
“It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.”
“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.”
“Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potential chilling effect that snooping techniques may have, this Court’s task in the present matter, where certain grave allegations of infringement of the rights of the citizens of the country have been raised, assumes great significance. In this light, this Court is compelled to take up the cause to determine the truth and get to the bottom of the allegations made herein.”
Provisions interpreted
Case and bench
- Parties
- Manohar Lal Sharma v. Union of India
- Case
- Writ Petition (Crl.) No. 314 of 2021, with Writ Petition (Civil) Nos. 826, 909, 861, 849, 855, 829, 850, 848, 853, 851 and 890 of 2021
- Decided
- 27 October 2021
- Bench
- N.V. Ramana, CJI, Surya Kant, J., Hima Kohli, J.
- Opinions
- Unanimous reasoned order of the Court, signed by N.V. Ramana, CJI, Surya Kant and Hima Kohli, JJ.; no author is named.