The present batch of Writ Petitions raise an Orwellian concern, about the alleged possibility of utilizing modern technology to hear what you hear, see what you see and to know what you do. ...
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IN THE SUPREME COURT OF INDIA
CRIMINAL /CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 314 OF 2021
MANOHAR LAL SHARMA …PETITIONER
VERSUS
UNION OF INDIA AND ORS. …RESPONDENT(S)
With
WRIT PETITION (CIVIL) NO. 826 OF 2021
With
WRIT PETITION (CIVIL) NO. 909 OF 2021
With
WRIT PETITION (CIVIL) NO. 861 OF 2021
With
WRIT PETITION (CIVIL) NO. 849 OF 2021
With
WRIT PETITION (CIVIL) NO. 855 OF 2021
With
WRIT PETITION (CIVIL) NO. 829 OF 2021
With
WRIT PETITION (CIVIL) NO. 850 OF 2021
With
1
REPORTABLE
WRIT PETITION (CIVIL) NO. 848 OF 2021
With
WRIT PETITION (CIVIL) NO. 853 OF 2021
With
WRIT PETITION (CIVIL) NO. 851 OF 2021
With
WRIT PETITION (CIVIL) NO. 890 OF 2021
ORDER
The Court is convened through Video Conferencing.
“If you want to keep a secret, you must also hide it from yourself.”
George Orwell, 1984
1.The present batch of Writ Petitions raise an Orwellian
concern, about the alleged possibility of utilizing modern
technology to hear what you hear, see what you see and to know
what you do. In this context, this Court is called upon to
examine an allegation of the use of such a technology, its utility,
need and alleged abuse. We make it clear that our effort is to
uphold the constitutional aspirations and rule of law, without
allowing ourselves to be consumed in the political rhetoric. This
2
Court has always been conscious of not entering the political
thicket. However, at the same time, it has never cowered from
protecting all from the abuses of fundamental rights. All that we
would like to observe in this regard is a reiteration of what had
already been said by this Court in Kesavananda Bharati v.
State of Kerala, (Opinion of Justice Khanna) AIR 1973 SC 1461:
“1535…. Judicial review is not intended to create what
is sometimes called judicial oligarchy, the aristrocracy
(sic) of the robe, covert legislation, or Judgemade law.
The proper forum to fight for the wise use of the
legislative authority is that of public opinion and
legislative assemblies. Such contest cannot be
transferred to the judicial arena. That all
constitutional interpretations have political
consequences should not obliterate the fact that the
decision has to be arrived at in the calm and
dispassionate atmosphere of the court room, that
Judges in order to give legitimacy to their decision
have to keep aloof from the din and controversy of
politics and that the fluctuating fortunes of rival
political parties can have for them only academic
interest. Their primary duty is to uphold the
Constitution and the laws without fear or favour and
in doing so, they cannot allow any political ideology or
economic theory, which may have caught their fancy,
to colour the decision…”
2.A short conspectus of the events leading up to the present
batch of petitions would not be misplaced to highlight the scope
of the issues at hand. In September 2018, Citizen Lab, which is a
laboratory based out of the University of Toronto, Canada,
3
released a report detailing the software capabilities of a “spyware
suite” called Pegasus that was being produced by an Israeli
Technology firm, viz., the NSO Group. The report indicated that
individuals from nearly 45 countries were suspected to have been
affected.
3.The Pegasus suite of spywares can allegedly be used to
compromise the digital devices of an individual through zero click
vulnerabilities, i.e., without requiring any action on the part of
the target of the software. Once the software infiltrates an
individual’s device, it allegedly has the capacity to access the
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
the end user of its products are “exclusively government
intelligence and law enforcement agencies” as per its own
website.
4
4.In May 2019, the global messaging giant WhatsApp Inc.
identified a vulnerability in its software that enabled Pegasus
spyware to infiltrate the devices of WhatsApp’s users. This news
was followed by a disclosure that the devices of certain Indians
were also affected, which fact was acknowledged by the then
Hon’ble Minister of Law and Electronics and Information
Technology in a statement made in the Parliament on 20
th
November 2019.
5.On 15
th
June 2020, Citizen Lab, in collaboration with the
international human rights organization, Amnesty International
uncovered another spyware campaign which allegedly targeted
nine individuals in India, some of whom were already suspected
targets in the first spyware attack.
6.On 18
th
July 2021, a consortium of nearly 17 journalistic
organizations from around the world, including one Indian
organization, released the results of a long investigative effort
indicating the alleged use of the Pegasus software on several
private individuals. This investigative effort was based on a list of
some 50,000 leaked numbers which were allegedly under
surveillance by clients of the NSO Group through the Pegasus
software. Initially, it was discovered that nearly 300 of these
5
numbers belonged to Indians, many of whom are senior
journalists, doctors, political persons, and even some Court staff.
At the time of filing of the Writ Petitions, nearly 10 Indians’
devices were allegedly forensically analyzed to confirm the
presence of the Pegasus software.
7.The above reports resulted in largescale action across the
globe, with certain foreign governments even diplomatically
engaging with the Israeli Government to determine the veracity of
the allegations raised, while other governments have initiated
proceedings internally to determine the truth of the same.
8.RespondentUnion of India, through the Hon’ble Minister of
Railways, Communications and Electronics and Information
Technology, took the stand in Parliament on 18
th
July 2021,
when asked about the alleged cyberattack and spyware use, that
the reports published had no factual basis. The Minister also
stated that the Amnesty report itself indicated that the mere
mention of a particular number in the list did not confirm
whether the same was infected by Pegasus or not. Further, the
Minister stated that NSO had itself factually contradicted many
of the claims made in the Amnesty report. Finally, he stated that
the Indian statutory and legal regime relating to surveillance and
6
interception of communication is extremely rigorous, and no
illegal surveillance could take place.
9.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 RespondentUnion of India to seriously consider the
allegations raised, relating to the purported cyberattack on
citizens of this country. Additionally, the apprehension expressed
by some Petitioners relates to the fact that, keeping in mind the
NSO Group disclosure that it sold its Pegasus software only to
vetted Governments, either some foreign government or certain
agencies of the RespondentUnion 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.
10.Before considering the issues at hand on merits, it is
necessary for this Court to summarize the events that transpired
in the Courtroom proceedings, to give some context to the order
being passed.
11.On 10
th
August 2021, it was recorded by this Court that a
7
copy of some of the petitions in this batch had been served on
the learned Solicitor General. The learned Solicitor General took
an adjournment at that time to get instructions.
12.On 16
th
August 2021, a “limited affidavit” was placed on
record by the learned Solicitor General that was filed by the
Additional Secretary, Ministry of Electronics and Information
Technology, Union of India. The relevant parts of the limited
affidavit filed by the Respondent Union of India are as follows:
“2. I state and submit that due to the limited time at
the disposal of the deponent/respondents, it is not
possible to deal with all the facts stated and the
contentions raised in the batch of petitions before
this Hon’ble Court . I am therefore, filing this
limited affidavit at this stage while reserving
liberty to file further affidavit hereafter in detail.
I, however, respectfully submit that my not
dealing with any of the petitions para wise may not be
treated as my having admitted the truthfulness or
otherwise of any of the contents thereof.
3. At the outset, it is submitted that I hereby
unequivocally deny any and all of the allegations made
against the Respondents in the captioned petition and
other connected petitions. A bare perusal of the
captioned petition and other connected petitions
makes it clear that the same are based on conjectures
and surmises or on other unsubstantiated media
reports or incomplete or uncorroborated material. It is
submitted that the same cannot be the basis for
invoking the writ jurisdiction of this Hon’ble Court.
4. It is submitted that this question stands already
8
clarified on the floor of the Parliament by the Hon’ble
Minister of Railways, Communications and Electronics
& Information Technology of India, Government of
India. A copy of the statement of the Hon’ble Minister
is attached herewith and marked as Annexure R1. In
that view of the matter, in the respectful submission of
the deponent, nothing further needs to be done at the
behest of the Petitioner, more particularly when they
have not made out any case.
5. It is, however, submitted that with a view to dispel
any wrong narrative spread by certain vested
interests and with an object of examining the issue
raised, the Union of India will constitute a
Committee of Experts in the field which will go in
to all aspects of the issue.”
On that day, we heard learned senior counsel appearing on
behalf of the Petitioners and the learned Solicitor General at
some length and adjourned the matter for further hearing.
13.On the next date of hearing, on 17
th
August 2021, this
Court indicated to the learned Solicitor General, while issuing
notice to the RespondentUnion of India, that the limited affidavit
filed by them was insufficient for the Court to come to any
conclusion regarding the stand of the RespondentUnion of India
with respect to the allegations raised by the Petitioners. As the
limited affidavit itself recorded that the detailed facts were not
adverted to due to a paucity of time, we indicated to the learned
Solicitor General that we were willing to give them further time to
9
enable the RespondentUnion of India to file a more detailed
affidavit. The learned Solicitor General indicated his
apprehension that the disclosure of certain facts might affect the
national security and defense of the nation.
14.This Court clarified at that juncture that it was not
interested in any information that may have a deleterious impact
on the security of the country. However, the RespondentUnion
of India could still place on record facts pertaining to the events
highlighted by the Petitioners, without disclosing information
adjudged to be sensitive by the relevant authorities.
15.Mr. Kapil Sibal, learned senior counsel appearing for the
Petitioners in Writ Petition (C) Nos. 826 and 851 of 2021, fairly
stated that the Petitioners were also concerned about the
national interest and would not press for any such information.
The learned Solicitor General again took some time to seek
instructions.
16.When the matter was next listed on 07
th
September 2021,
the learned Solicitor General requested an adjournment, and we
directed that the matter be listed on 13
th
September 2021.
17.On 13
th
September 2021, we were again informed by the
learned Solicitor General that placing the information sought by
10
the Petitioners on an affidavit would be detrimental to the
security interests of the nation. The learned Solicitor General
submitted that such information could not be made a matter of
public debate as the same could be used by terror groups to
hamper national security. He reiterated the statement dated 18
th
July 2021 made by the Hon’ble Minister of Railways,
Communications and Electronics and Information Technology on
the floor of the Parliament regarding the statutory mechanism
surrounding surveillance and interception in the country which
ensures that unauthorized surveillance does not take place. He
finally submitted that, to assuage the concerns of the public and
to dispel any wrong narratives, considering the technical nature
of the issues, the RespondentUnion of India would be willing to
constitute an Expert Committee which will go into all aspects
and file a report before this Court.
18.Mr. Kapil Sibal, learned senior counsel appearing on behalf
of the Petitioners in Writ Petition (C) Nos. 826 and 851 of 2021,
submitted that the RespondentUnion of India should not act in
a manner that would prevent the Court from rendering justice
and should not withhold information from the Court in a matter
concerning the alleged violation of fundamental rights of citizens.
11
He submitted that in the year 2019, when certain reports of
Pegasus hacking WhatsApp came to light, the then Hon’ble
Minister of Law and Information Technology and Communication
had acknowledged the reports of hacking in Parliament, but the
RespondentUnion of India had not indicated what actions were
taken subsequently, which information they could have disclosed
on affidavit. Learned senior counsel submitted that such inaction
by the Respondent Union was a matter of grave concern,
particularly when reputed international organizations with no
reason for bias against the nation had also accepted the fact of
such an attack having been made. Mr. Sibal finally submitted
that an independent probe into the alleged incident required to
take place under the supervision of retired Judges of this Court,
as was ordered by this Court in the Jain Hawala case. He
objected to the suggestion of the learned Solicitor General that
the RespondentUnion of India itself be allowed to form a
Committee on the ground that any Committee formed to probe
the allegations raised by the Petitioners should be completely
independent from the RespondentUnion of India.
19.Mr. Shyam Divan, learned senior counsel appearing on
behalf of the Petitioner in Writ Petition (C) No. 849 of 2021 who
12
claims to be one of the parties whose phone was directly affected
by Pegasus, submitted that Pegasus enabled an entity to not only
surveil or spy on an individual, but also allowed them to implant
false documents and evidence in a device. He relied on affidavits
filed by two experts in the field of cyber security to buttress his
submission regarding the nature and function of the software.
Mr. Divan submitted that once such a largescale cyberattack and
threat had been made public and brought to the knowledge of
the RespondentUnion of India, it was the State’s responsibility
to take necessary action to protect the interests and fundamental
rights of the citizens, particularly when there existed the risk
that such an attack was made by a foreign entity. Mr. Divan
pressed for the interim relief sought in Writ Petition (C) No. 849
of 2021, whereby a response was sought on affidavit from the
Cabinet Secretary. Mr. Divan also supported the prayer made by
Mr. Sibal regarding the constitution of a special Committee or
Special Investigation Team to probe the allegations.
20.Mr. Rakesh Dwivedi, learned senior counsel appearing on
behalf of the Petitioners in Writ Petition (C) No. 853 of 2021
submitted that the Petitioners are senior journalists who are
victims of the Pegasus attack. He submitted that if the
13
RespondentUnion of India had made a statement on affidavit
that it had not used a malware or spied on the Petitioners in an
unauthorized manner, that would have been the end of the
matter. Instead, the RespondentUnion of India had not provided
any information on affidavit. He therefore urged the Court to
constitute an independent Committee under its supervision
rather than allowing the RespondentUnion of India to constitute
a Committee, as suggested by the learned Solicitor General, to
avoid any credibility issues. He further submitted that requiring
the Petitioners to hand over their phones to a Committee
appointed by the RespondentUnion of India, when certain
allegations had been raised against the RespondentUnion of
India, would amount to a secret exercise whose results would not
be trusted by the Petitioners or the public.
21.Mr. Dinesh Dwivedi, learned senior counsel appearing on
behalf of the Petitioner in Writ Petition (C) No. 848 of 2021
submitted that his client is a respected journalist whose device
had been infected with the Pegasus malware. The main thrust of
his submission was that if any pleading was not specifically
denied, it would be deemed to have been admitted. As the
RespondentUnion of India had not specifically denied the
14
Petitioner’s allegation, the same should therefore be deemed to be
admitted by the RespondentUnion of India. Learned senior
counsel submitted that such an attack on the privacy of the
Petitioner was not only a violation of his fundamental right, but
also amounted to chilling his freedom of speech as a journalist.
22.Ms. Meenakshi Arora, learned senior counsel appearing on
behalf of the Petitioner in Writ Petition (C) No. 829 of 2021,
supported the prayer made by Mr. Kapil Sibal regarding the
constitution of an independent Special Investigation Team
headed by a retired Judge to investigate the matter.
23.Mr. Colin Gonsalves, learned senior counsel appearing on
behalf of the Petitioners in Writ Petition (C) No. 909 of 2021,
wherein Petitioner No. 1 is a journalist, lawyer and human rights
activist who is an affected party, while Petitioner No. 2 is a
registered society which works on the promotion and protection
of digital rights and digital freedom in India, submitted that a
number of such digital interceptions were being conducted by the
States and the RespondentUnion of India. He submitted that, in
light of the allegations raised against the RespondentUnion of
India in the present matter, it would not be appropriate to allow
the RespondentUnion of India to form a Committee to
15
investigate the present allegations. Further, the learned senior
counsel pointed to the actions taken by various foreign
governments in light of the purported spyware attack to highlight
the veracity of the reports by news agencies and the seriousness
with which the allegations were being viewed in other countries.
24.Mr. M. L. Sharma, petitionerinperson in Writ Petition (Crl.)
No. 314 of 2021, submitted that the Pegasus suite of spywares
was different from other spyware as it allowed an agency to gain
complete control over an individual’s device. He submitted that
the software could be used to plant false evidence into an
individual’s device, which could then be used to implicate the
said person. He therefore submitted that the alleged use of
Pegasus on the citizens of the country, was of grave concern.
25.The learned Solicitor General rebutted the arguments of the
Petitioners and submitted that there was no reason to question
the credibility of any Committee that might be constituted by the
RespondentUnion of India as only experts independent of any
association with the RespondentUnion of India would be a part
of the same. He further stated that all technologies had the
capability of either being used or abused, and it could not be said
that the use of such a software was per se impermissible,
16
particularly when a robust legal mechanism existed to check the
use of the same. He finally reiterated that this Court should allow
the RespondentUnion of India to constitute an Expert
Committee which would be under its supervision.
26.We have considered the submissions of the learned senior
counsel for the Petitioners, Petitionerinperson, and the learned
Solicitor General for the RespondentUnion of India.
27.At the outset, certain nuances of the right to privacy in
India its facets and importance, need to be discussed.
Historically, privacy rights have been ‘property centric’ rather
than people centric. This approach was seen in both the United
States of America as well as in England. In 1604, in the historical
Semayne’s case, 77 ER 194 (KB) it was famously held that
“every man’s house is his castle”. This marked the beginning of
the development of the law protecting people against unlawful
warrants and searches.
28.As William Pitt, the Earl of Chatham stated in March 1763
1
:
“The poorest man may in his cottage bid defiance to all
the force of the Crown. It may be frail—its roof may
shake—the wind may blow through it—the storm may
enter, the rain may enter—but the King of England
cannot enter!—all his force dares not cross the
threshold of the ruined tenement!”
1
Lord Brougham, Historical Sketches of Statesmen who Flourished in the Time of George III First Series,
Vol. 1 (1845).
17
29.As long back as in 1890, Samuel Warren and Louis
Brandeis observed in their celebrated article ‘The Right to
Privacy’
2
:
“Recent inventions and business methods call
attention to the next step which must be taken for the
protection of the person, and for securing to the
individual what Judge Cooley calls the right “to be let
alone.”…numerous mechanical devices threaten to
make good the prediction that “what is whispered in
the closet shall be proclaimed from the housetops.”
30.However, unlike the ‘property centric’ origin of privacy
rights in England and under the Fourth Amendment in the
Constitution of the United States of America, in India, privacy
rights may be traced to the ‘right to life’ enshrined under Article
21 of the Constitution. When this Court expounded on the
meaning of “life” under Article 21, it did not restrict the same in a
pedantic manner. An expanded meaning has been given to the
right to life in India, which accepts that “life” does not refer to
mere animal existence but encapsulates a certain assured
quality.
31.It is in this context that we must contextualize the issues
that are being raised in this batch of petitions. We live in the era
of information revolution, where the entire lives of individuals are
2
Samuel Warren and Louis Brandeis, The Right to Privacy, HARVARD LAW REVIEW, Vol. 4 (5), 193 (Dec. 15,
1890).
18
stored in the cloud or in a digital dossier. We must recognize that
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.
32.Members of a civilized democratic society have a reasonable
expectation of privacy. Privacy is not the 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.
This Court in K.S. Puttaswamy (Privacy9J.) v. Union of India,
(2017) 10 SCC 1, has recognized that the right to privacy is as
sacrosanct as human existence and is inalienable to human
dignity and autonomy. This Court held that:
“320. Privacy is a constitutionally protected right
which emerges primarily from the guarantee of life
and personal liberty in Article 21 of the
Constitution. Elements of privacy also arise in
varying contexts from the other facets of freedom and
dignity recognised and guaranteed by the fundamental
rights contained in Part III.
…
325. Like other rights which form part of the
fundamental freedoms protected by Part III, including
the right to life and personal liberty under Article 21,
privacy is not an absolute right. A law which
encroaches upon privacy will have to withstand the
19
touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an
invasion of privacy must be justified on the basis
of a law which stipulates a procedure which is fair,
just and reasonable. The law must also be valid
with reference to the encroachment on life and
personal liberty under Article 21. An invasion of
life or personal liberty must meet the threefold
requirement of ( i ) legality, which postulates the
existence of law; ( ii ) need, defined in terms of a
legitimate State aim; and ( iii ) proportionality
which ensures a rational nexus between the objects
and the means adopted to achieve them.”
(emphasis supplied)
33.Although declared to be inalienable, the right to privacy of
course cannot be said to be an absolute, as the Indian
Constitution does not provide for such a right without reasonable
restrictions. As with all the other fundamental rights, this Court
therefore must recognize that certain limitations exist when it
comes to the right to privacy as well. However, any restrictions
imposed must necessarily pass constitutional scrutiny.
34. In K.S. Puttaswamy (Privacy9J.) (supra), this Court
considered the need to protect the privacy interests of individuals
while furthering legitimate State interests. This Court therefore
directed the State to embark upon the exercise of balancing of
competing interests. This Court observed as follows:
“310.While it intervenes to protect legitimate
20
State interests, the State must nevertheless put
into place a robust regime that ensures the
fulfilment of a threefold requirement. These three
requirements apply to all restraints on privacy (not
just informational privacy). They emanate from the
procedural and contentbased mandate of Article
21. The first requirement that there must be a law in
existence to justify an encroachment on privacy is an
express requirement of Article 21. For, no person can
be deprived of his life or personal liberty except in
accordance with the procedure established by law. The
existence of law is an essential requirement. Second,
the requirement of a need, in terms of a legitimate
State aim, ensures that the nature and content of the
law which imposes the restriction falls within the zone
of reasonableness mandated by Article 14, which is a
guarantee against arbitrary State action. The pursuit
of a legitimate State aim ensures that the law does not
suffer from manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment. Judicial review
does not reappreciate or second guess the value
judgment of the legislature but is for deciding whether
the aim which is sought to be pursued suffers from
palpable or manifest arbitrariness. The third
requirement ensures that the means which are
adopted by the legislature are proportional to the
object and needs sought to be fulfilled by the law.
Proportionality is an essential facet of the
guarantee against arbitrary State action because it
ensures that the nature and quality of the
encroachment on the right is not disproportionate
to the purpose of the law. Hence, the threefold
requirement for a valid law arises out of the mutual
interdependence between the fundamental
guarantees against arbitrariness on the one hand
and the protection of life and personal liberty, on
the other. The right to privacy, which is an
intrinsic part of the right to life and liberty, and
the freedoms embodied in Part III is subject to the
21
same restraints which apply to those freedoms.”
(emphasis supplied)
35.The right to privacy is directly infringed when there is
surveillance or spying done on an individual, either by the State
or by any external agency. Ellen Alderman and Caroline
Kennedy, in ‘Right to Privacy’,
3
foresaw this threat to privacy in
1995, while referring to governmental eavesdropping in the
United States of America, in the following words:
“Perhaps the scariest threat to privacy comes in the
area known as “informational privacy”. Information
about all of us is now collected not only by the old
standbys, the IRS and FBI, but also by the MTB, MIB,
NCOA, and NCIC, as well as credit bureaus, credit
unions, and credit card companies. We now have
cellular phones, which are different from cordless
phones, which are different from what we used to
think of as phones. We worry about email, voice mail,
and junk mail. And something with the perky name
Clipper Chip developed specifically to allow
governmental eavesdropping on coded electronic
communications – is apparently the biggest threat of
all.”
36.Of course, if done by the State, the same must be justified
on constitutional grounds. This Court is cognizant of the State’s
interest to ensure that life and liberty is preserved and must
balance the same. 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
3
Ellen Alderman and Caroline Kennedy, THE RIGHT TO PRIVACY, 223 (1995).
22
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 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.
37.This tradeoff between the right to privacy of an individual
and the security interests of the State, has been recognized world
over with the renowned scholar Daniel Solove
4
commenting on
the same as follows:
“The debate between privacy and security has been
framed incorrectly, with the tradeoff between these
values understood as an allornothing proposition.
But protecting privacy need not be fatal to security
measures; it merely demands oversight and
regulation. We can’t progress in the debate
between privacy and security because the debate
itself is flawed.
The law suffers from related problems. It seeks to
balance privacy and security, but systematic problems
plague the way the balancing takes place….
4
Daniel J. Solove, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY
(2011).
23
Privacy often can be protected without undue cost to
security. In instances when adequate compromises
can’t be achieved, the tradeoff can be made in a
manner that is fair to both sides. We can reach a
better balance between privacy and security. We must.
There is too much at stake to fail.”
(emphasis supplied)
38.Somewhat allied to the concerns of privacy, is the freedom
of the press. Certain observations made by this Court in the case
of Indian Express Newspapers (Bombay) Private Limited v.
Union of India, (1985) 1 SCC 641 may be extracted:
“25. The freedom of press, as one of the members of
the Constituent Assembly said, is one of the items
around which the greatest and the bitterest of
constitutional struggles have been waged in all
countries where liberal constitutions prevail. The said
freedom is attained at considerable sacrifice and
suffering and ultimately it has come to be incorporated
in the various written constitutions…”
39.It is undeniable 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 selfcensorship. 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 publicwatchdog role of the press,
which may undermine the ability of the press to provide accurate
24
and reliable information. Recently, in the case of Anuradha
Bhasin v. Union of India, (2020) 3 SCC 637, this Court
highlighted the importance of freedom of the press in a modern
democracy in the following words:
“159. In this context, one possible test of chilling
effect is comparative harm. In this framework, the
Court is required to see whether the impugned
restrictions, due to their broadbased nature, have
had a restrictive effect on similarly placed
individuals during the period. It is the contention of
the petitioner that she was not able to publish her
newspaper from 682019 to 11102019. However, no
evidence was put forth to establish that such other
individuals were also restricted in publishing
newspapers in the area. Without such evidence having
been placed on record, it would be impossible to
distinguish a legitimate claim of chilling effect from a
mere emotive argument for a selfserving purpose. On
the other hand, the learned Solicitor General has
submitted that there were other newspapers which
were running during the aforesaid time period. In view
of these facts, and considering that the aforesaid
petitioner has now resumed publication, we do not
deem it fit to indulge more in the issue than to state
that responsible Governments are required to respect
the freedom of the press at all times. Journalists are
to be accommodated in reporting and there is no
justification for allowing a sword of Damocles to
hang over the press indefinitely.”
(emphasis supplied)
40.An important and necessary corollary of such a right is to
ensure the protection of sources of information. Protection of
journalistic sources is one of the basic conditions for the freedom
25
of the press. Without such protection, sources may be deterred
from assisting the press in informing the public on matters of
public interest.
41.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.
42.Initially, this Court was not satisfied with the Writ Petitions
that were filed as the same were completely reliant only upon
certain newspaper reports. This Court has generally attempted to
discourage Writ Petitions, particularly Public Interest Litigations,
which are based entirely on newspaper reports without any
additional steps taken by the Petitioner. In this respect, it may be
relevant to quote the observations of this Court in the case of
Rohit Pandey v. Union of India, (2005) 13 SCC 702, which are
as follows:
“1. …The only basis for the petitioner coming to
26
this Court are two newspaper reports dated
2512004, and the other dated 1222004. This
petition was immediately filed on 1622004 after the
aforesaid second newspaper report appeared….
2. We expect that when such a petition is filed in
public interest and particularly by a member of the
legal profession, it would be filed with all
seriousness and after doing the necessary
homework and enquiry. If the petitioner is so public
spirited at such a young age as is so professed, the
least one would expect is that an enquiry would be
made from the authorities concerned as to the nature
of investigation which may be going on before filing a
petition that the investigation be conducted by the
Central Bureau of Investigation. Admittedly, no such
measures were taken by the petitioner. There is
nothing in the petition as to what, in fact, prompted
the petitioner to approach this Court within twothree
days of the second publication dated 1222004, in the
newspaper Amar Ujala. Further, the State of Uttar
Pradesh had filed its affidavit a year earlier i.e. on 7
102004, placing on record the steps taken against the
accused persons, including the submission of the
chargesheet before the appropriate court. Despite one
year having elapsed after the filing of the affidavit by
the Special Secretary to the Home Department of the
Government of Uttar Pradesh, nothing seems to have
been done by the petitioner. The petitioner has not
even controverted what is stated in the affidavit.
Ordinarily, we would have dismissed such a
misconceived petition with exemplary costs but
considering that the petitioner is a young advocate, we
feel that the ends of justice would be met and the
necessary message conveyed if a token cost of rupees
one thousand is imposed on the petitioner.”
(emphasis supplied)
43.While we understand that the allegations made in these
petitions pertain to matters about which ordinary citizens would
27
not have information except for the investigating reporting done
by news agencies, looking to the quality of some of the petitions
filed, we are constrained to observe that individuals should not
file halfbaked petitions merely on a few newspaper reports. Such
an exercise, far from helping the cause espoused by the
individual filing the petition, is often detrimental to the cause
itself. This is because the Court will not have proper assistance
in the matter, with the burden to even determine preliminary
facts being left to the Court. It is for this reason that trigger
happy filing of such petitions in Courts, and more particularly in
this Court which is to be the final adjudicatory body in the
country, needs to be discouraged. This should not be taken to
mean that the news agencies are not trusted by the Court, but to
emphasize the role that each pillar of democracy occupies in the
polity. News agencies report facts and bring to light issues which
might otherwise not be publicly known. These may then become
the 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 the ordinary course be taken to be readymade pleadings that
may be filed in Court.
28
44.That said, after we indicated our reservations to the
Petitioners regarding the lack of material, various other petitions
have been filed in Court, including by individuals who were
purportedly victims of the alleged Pegasus spyware attack. These
subsequently filed petitions, as well as additional documents
filed by others, have brought on record certain materials that
cannot be brushed aside, such as the reports of reputed
organizations like Citizen Lab and affidavits of experts.
Additionally, the sheer volume of crossreferenced and cross
verified reports from various reputable news organizations across
the world along with the reactions of foreign governments and
legal institutions also moved us to consider that this is a case
where the jurisdiction of the Court may be exercised. Of course,
the learned Solicitor General suggested that many of these
reports are motivated and selfserving. However, such an
omnibus oral allegation is not sufficient to desist from
interference.
45.It is for this reason that this Court issued notice to the
RespondentUnion of India and sought information from them.
We would like to reemphasize what is already apparent from the
record of proceedings. This Court gave ample opportunity to the
29
RespondentUnion of India 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 RespondentUnion 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 RespondentUnion 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. If the RespondentUnion of India
had made their stand clear it would have been a different
situation, and the burden on us would have been different.
46.Such a course of action taken by the RespondentUnion of
India, especially in proceedings of the present nature which
touches upon the fundamental rights of the citizens of the
country, cannot be accepted. As held by this Court in Ram
Jethmalani v. Union of India, (2011) 8 SCC 1, the
RespondentUnion of India should not take an adversarial
position when the fundamental rights of citizens are at threat.
30
This Court in that case observed as follows:
“75. In order that the right guaranteed by clause (1) of
Article 32 be meaningful, and particularly because
such petitions seek the protection of fundamental
rights, it is imperative that in such proceedings the
petitioners are not denied the information necessary
for them to properly articulate the case and be heard,
especially where such information is in the possession
of the State. To deny access to such information,
without citing any constitutional principle or
enumerated grounds of constitutional prohibition,
would be to thwart the right granted by clause (1) of
Article 32.
76. Further, inasmuch as, by history and tradition of
common law, judicial proceedings are substantively,
though not necessarily fully, adversarial, both
parties bear the responsibility of placing all the
relevant information, analyses, and facts before
this Court as completely as possible. In most
situations, it is the State which may have more
comprehensive information that is relevant to the
matters at hand in such proceedings...
77. It is necessary for us to note that the burden of
asserting, and proving, by relevant evidence a claim
in judicial proceedings would ordinarily be placed
upon the proponent of such a claim; however, the
burden of protection of fundamental rights is
primarily the duty of the State. Consequently,
unless constitutional grounds exist, the State
may not act in a manner that hinders this Court
from rendering complete justice in such
proceedings. Withholding of information from the
petitioners, or seeking to cast the relevant events and
facts in a light favourable to the State in the context
of the proceedings, even though ultimately
detrimental to the essential task of protecting
fundamental rights, would be destructive to the
31
guarantee in clause (1) of Article 32…
78. In the task of upholding of fundamental
rights, the State cannot be an adversary. The
State has the duty, generally, to reveal all the
facts and information in its possession to the
Court, and also provide the same to the
petitioners. This is so, because the petitioners would
also then be enabled to bring to light facts and the
law that may be relevant for the Court in rendering
its decision. In proceedings such as those under
Article 32, both the petitioner and the State, have to
necessarily be the eyes and ears of the Court.
Blinding the petitioner would substantially detract
from the integrity of the process of judicial decision
making in Article 32 proceedings, especially where
the issue is of upholding of fundamental rights.”
(emphasis supplied)
47.This free flow of information from the Petitioners and the
State, in a writ proceeding before the Court, is an important step
towards Governmental transparency and openness, which are
celebrated values under our Constitution, as recognized by this
Court recently in the Anuradha Bhasin (supra) judgment.
48.Of course, there may be circumstances where the State has
a constitutionally defensible reason for denying access to certain
information or divulging certain information as was recognized by
this Court in the Ram Jethmalani (supra) case, as extracted
below:
“80. Withholding of information from the
32
petitioners by the State, thereby constraining their
freedom of speech and expression before this Court,
may be premised only on the exceptions carved
out, in clause (2) of Article 19, “in the interests of
the sovereignty and integrity of India, the
security of the State, friendly relations with
foreign States, public order, decency or morality,
or in relation to contempt of court, defamation or
incitement to an offence” or by law that
demarcate exceptions, provided that such a law
comports with the enumerated grounds in clause
(2) of Article 19, or that may be provided for
elsewhere in the Constitution.”
(emphasis supplied)
49.It is on the strength of the above exception carved out that
the RespondentUnion of India has justified its nonsubmission
of a detailed counter affidavit, viz., by citing security concerns. 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.
50.Of course, the RespondentUnion of India may decline to
provide information when constitutional considerations exist,
33
such as those pertaining to the security of the State, or when
there is a specific immunity under a specific statute. However, it
is incumbent on the 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. The Respondent
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. They must
justify the stand that they take before a Court. The mere
invocation of national security by the State does not render the
Court a mute spectator.
51.In the present matter, as we have indicated above, the
Petitioners have placed on record certain material that prima
facie merits consideration by this Court. There has been no
specific denial of any of the facts averred by the Petitioners by
the RespondentUnion of India. There has only been an omnibus
and vague denial in the “limited affidavit” filed by the
RespondentUnion of India, which cannot be sufficient. In such
circumstances, we have no option but to accept the prima facie
case made out by the Petitioners to examine the allegations
made.
34
52.Different forms of surveillance and data gathering by
intelligence agencies to fight terrorism, crime and corruption in
national interest and/or for national security, are accepted
norms all over the world. The Petitioners do not contend that the
State should not resort to surveillance/collection of data in
matters of national security. The complaint of the Petitioners is
about the misuse or likely misuse of spyware in violation of the
right to privacy of citizens. The RespondentUnion of India also
does not contend that its agencies can resort to
surveillance/collection of data relating to its citizens where
national security and national interest are not involved. The
apprehension of the RespondentUnion of India is that any
inquiry in this behalf should not jeopardize national security and
the steps taken by it to protect national security. There is thus a
broad consensus that unauthorized surveillance/accessing of
stored data from the phones and other devices of citizens for
reasons other than nation’s security would be illegal,
objectionable and a matter of concern.
53.The only question that remains then is what the appropriate
remedy in this case would be. Mr. Shyam Divan, learned senior
counsel appearing on behalf of the Petitioner in Writ Petition (C)
35
No. 849 of 2021 sought an interim order from this Court
directing the Cabinet Secretary to put certain facts on an
affidavit. On the other hand, most of the other senior counsel
appearing on behalf of the other Writ Petitioners sought an
independent investigation or inquiry into the allegations
pertaining to the use of Pegasus software either by constituting a
Special Investigation Team headed by a retired judge or by a
Judges’ Committee.
54.We are of the opinion that in the circumstances of the
present case, when the RespondentUnion of India has already
been given multiple opportunities to file an affidavit on record,
and looking to the conduct of the RespondentUnion of India in
not placing on record any facts through their reliance on the
“national security” defense, no useful purpose would be served
by issuing directions of the nature sought by Mr. Shyam Divan,
apart from causing a further delay in proceedings.
55.Instead, we are inclined to pass an order appointing an
Expert Committee whose functioning will be overseen by a retired
Judge of the Supreme Court. Such a course of action has been
adopted by this Court in various other circumstances when the
Court found it fit in the facts and circumstances of the case to
36
probe the truth or falsity of certain allegations, taking into
account the public importance and the alleged scope and nature
of the largescale violation of the fundamental rights of the
citizens of the country [See Ram Jethmalani (supra); Extra
Judicial Execution Victim Families Association v. Union of
India, (2013) 2 SCC 493; G.S. Mani v. Union of India, order
dated 12.12.2019 in W.P. (Crl.) No. 348 of 2019].
56.The compelling circumstances that have weighed with us to
pass such an order are as follows:
i.Right to privacy and freedom of speech are alleged to be
impacted, which needs to be examined.
ii.The entire citizenry is affected by such allegations due to
the potential chilling effect.
iii.No clear stand taken by the RespondentUnion of India
regarding actions taken by it.
iv.Seriousness accorded to the allegations by foreign
countries and involvement of foreign parties.
v.Possibility that some foreign authority, agency or private
entity is involved in placing citizens of this country under
surveillance.
vi.Allegations that the Union or State Governments are party
37
to the rights’ deprivations of the citizens.
vii.Limitation under writ jurisdiction to delve into factual
aspects. For instance, even the question of usage of the
technology on citizens, which is the jurisdictional fact, is
disputed and requires further factual examination.
57.It is for reason (vi) above that we decline the Respondent
Union of India’s plea to allow them to appoint an Expert
Committee for the purposes of investigating the allegations, as
such a course of action would violate the settled judicial principle
against bias, i.e., that ‘justice must not only be done, but also be
seen to be done’.
58.At this juncture, it would be appropriate to state that 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 biodatas 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 the
most renowned experts available to be a part of the Committee.
38
Additionally, we have also left it to the discretion of the learned
overseeing judge to take assistance from any expert, if necessary,
to ensure absolute transparency and efficiency, as directed in
paragraph 62(3).
59.With the above observations, we constitute a 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. The learned
overseeing Judge will be assisted in this task by:
i.Mr. Alok Joshi, former IPS officer (1976 batch) who
has immense and diverse investigative experience and
technical knowledge. He has worked as the Joint
Director, Intelligence Bureau, the Secretary(R),
Research and Analysis Wing and Chairman, National
Technical Research Organisation.
ii.Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7
(International Organisation of Standardisation/
International ElectroTechnical Commission/Joint
Technical Committee), a subcommittee which
develops and facilitates standards within the field of
39
software products and systems. Dr. Oberoi is also a
part of the Advisory Board of Cyber Security Education
and Research Centre at Indraprastha Institute of
Information Technology, Delhi. He is globally
recognized as a cyber security expert.
60.The three members Technical Committee [hereinafter
referred to as the “Committee”] shall comprise of:
i.Dr. Naveen Kumar Chaudhary, Professor (Cyber
Security and Digital Forensics) and Dean, National
Forensic Sciences University, Gandhinagar, Gujarat.
Dr. Chaudhary has over two decades of experience as
an academician, cyber security enabler and cyber
security expert. He specializes in cyber security policy,
network vulnerability assessment and penetration
testing.
ii.Dr. Prabaharan P., Professor (School of Engineering),
Amrita Vishwa Vidyapeetham, Amritapuri, Kerala. He
has two decades of experience in computer science
and security areas. His areas of interest are malware
detection, critical infrastructural security, complex
binary analysis, AI and machine learning. He has
40
many publications in reputed journals.
iii.Dr. Ashwin Anil Gumaste, Institute Chair Associate
Professor (Computer Science and Engineering), Indian
Institute of Technology, Bombay, Maharashtra. He has
been granted 20 US patents and has published over
150 papers and authored 3 books in his field. He has
received several National awards including the Vikram
Sarabhai Research Award (2012) and Shanti Swarup
Bhatnagar Prize for Science and Technology (2018). He
has also held the position of Visiting Scientist at the
Massachusetts Institute of Technology, USA.
61.The terms of reference of the Committee are as follows:
A.To enquire, investigate and determine:
i.Whether the Pegasus suite of spyware was used on
phones or other devices of the citizens of India to access
stored data, eavesdrop on conversations, intercept
information and/or for any other purposes not explicitly
stated herein?
ii.The details of the victims and/or persons affected by
such a spyware attack.
41
iii.What steps/actions have been taken by the
RespondentUnion of India after reports were published
in the year 2019 about hacking of WhatsApp accounts
of Indian citizens, using the Pegasus suite of spyware.
iv.Whether any Pegasus suite of spyware was acquired by
the RespondentUnion of India, or any State
Government, or any central or state agency for use
against the citizens of India?
v.If any governmental agency has used the Pegasus suite
of spyware on the citizens of this country, under what
law, rule, guideline, protocol or lawful procedure was
such deployment made?
vi.If any domestic entity/person has used the spyware on
the citizens of this country, then is such a use
authorised?
vii.Any other matter or aspect which may be connected,
ancillary or incidental to the above terms of reference,
which the Committee may deem fit and proper to
investigate.
B.To make recommendations:
i.Regarding enactment or amendment to existing law
and procedures surrounding surveillance and for
42
securing improved right to privacy.
ii.Regarding enhancing and improving the cyber security
of the nation and its assets.
iii.To ensure prevention of invasion of citizens’ right to
privacy, otherwise than in accordance with law, by
State and/or nonState entities through such
spywares.
iv.Regarding the establishment of a mechanism for
citizens to raise grievances on suspicion of illegal
surveillance of their devices.
v.Regarding the setting up of a wellequipped
independent premier agency to investigate cyber
security vulnerabilities, for threat assessment relating
to cyberattacks and to investigate instances of
cyberattacks in the country.
vi.Regarding any adhoc arrangement that may be made
by this Court as an interim measure for the protection
of citizen’s rights, pending filling up of lacunae by the
Parliament.
vii.On any other ancillary matter that the Committee may
deem fit and proper.
43
62.The Procedure of the Committee shall be as follows:
(1)The Committee constituted by this Order is authorised to
(a)devise its own procedure to effectively implement and
answer the Terms of Reference;
(b)hold such enquiry or investigation as it deems fit;and
(c)take statements of any person in connection with the
enquiry and call for the records of any authority or
individual.
(2) Justice R. V. Raveendran, former Judge, Supreme Court of
India will oversee the functioning of the Committee with
respect to the methodology to be adopted, procedure to be
followed, enquiry and investigation that is carried out and
preparation of the report.
(3)The learned overseeing Judge is at liberty to take the
assistance of any serving or retired officer(s), legal expert(s)
or technical expert(s) in discharge of his functions.
(4)We request the learned overseeing Judge to fix the
honorarium of the members of the Committee in
consultation with them, which shall be paid by the
RespondentUnion of India immediately.
44
(5)The RespondentUnion of India and all the State
Governments, as well as agencies/authorities under them,
are directed to extend full facilities, including providing
support with respect to infrastructure needs, manpower,
finances, or any other matter as may be required by the
Committee or the overseeing former Judge to effectively and
expeditiously carry out the task assigned to them by this
Court.
(6)Mr. Virender Kumar Bansal, Officer on Special Duty/
Registrar, Supreme Court of India, is directed to coordinate
between the Committee, the learned overseeing Judge and
the Central/State Governments to facilitate communication
and ensure smooth functioning and expeditious response
to, and implementation of, requests made by the
Committee, the learned overseeing Judge or those named in
paragraph 59 above, tasked to assist him.
63.The Committee is requested to prepare the report after a
thorough inquiry and place it before this Court, expeditiously.
45
64.List the matter after 8 weeks.
...........................................CJI.
(N.V. RAMANA)
..............................................J.
(SURYA KANT)
..............................................J.
(HIMA KOHLI)
NEW DELHI;
OCTOBER 27, 2021
46
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