Right to privacy sacrosanct, says Supreme Court; retired judge to head Pegasus probe

Tribune News Service

New Delhi, October 27

Noting that the right to privacy is sacrosanct, though not absolute, the Supreme Court today set up an independent expert committee led by former top court judge RV Raveendran to look into the allegations of snooping on journalists, activists, politicians, etc. using Pegasus spyware.

• Editorial: Pegasus probe
• Rahul Gandhi vows to raise issue in Parliament

No omnibus bar against judicial review

National security can’t be the bugbear that the judiciary shies away from... Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.

A Bench led by Chief Justice NV Ramana said Justice Raveendran would be assisted by former IPS officer Alok Joshi and Dr Sundeep Oberoi, Chairman, Sub-Committee (International Organisation of Standardisation/International Electro-Technical Commission/Joint Technical Committee), in overseeing the work of a three-member technical committee. The members of the technical committee are Naveen Kumar Chaudhary, Professor (cyber security and digital forensics) and Dean, National Forensic Sciences University, Gandhinagar; Dr Prabaharan P, Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Dr Ashwin Anil Gumaste, Institute Chair Associate Professor (computer science and engineering), IIT, Bombay.

Asking the panel to expeditiously probe the issue and submit a report to it, the Bench posted the matter for hearing after eight weeks.

The court also turned down the Centre’s offer of setting up an expert panel to look into the allegations, saying, “Rather than relying upon any government agencies, we have constituted the committee and shortlisted expert members based on biodatas and information collected independently.” It also rejected Solicitor General Tushar Mehta’s arguement that the petitions and media reports were motivated, saying such omnibus oral submissions can’t be accepted. “Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy,” said the Bench, which also included Justice Surya Kant and Justice Hima Kohli.

Admitting that the scope of judicial review was limited on issues of national security, the Bench said, “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.” Pointing out that there had been no specific denial of snooping by the Centre, the top court said it had no option but to accept the petitioners’ submissions and appoint an expert committee.

Noting that there were restrictions on right to privacy, the Bench said the restrictions had to withstand constitutional scrutiny. “In today’s world, restrictions on privacy are to prevent terrorist activities and can only be imposed when needed to protect national security,” it added.

Referring to KS Puttaswamy vs Union of India (2017) case – in which right to privacy was declared a fundamental right – the top court said the verdict has recognised that “the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy”.

However, the Bench clarified, “Although declared to be inalienable, the right to privacy, of course, cannot be said to be absolute, as the Constitution does not provide for such a right without reasonable restrictions.”

Compelling circumstances behind order

• Right to privacy, speech freedom alleged to be impacted, which needs to be examined
• The entire citizenry is affected by such allegations due to the potential chilling effect
• No clear stand by the Centre regarding actions taken by it
• The seriousness accorded to the allegations by foreign nations and the involvement of foreign parties
• Possibility that some foreign authority, agency or private entity involved in placing Indian citizens under surveillance
• The allegations that the Union or state govts are party to the rights’ deprivation of citizens
• n Limitation under writ jurisdiction to delve into facts

Committee’s terms of reference

• To find if Pegasus was used to access stored data, eavesdrop on conversations, intercept information
• Details of those affected by such a spyware attack
• Steps taken by Centre after reports of hacking WhatsApp accounts were published in 2019
• Whether spyware was acquired by the Centre, any state or other agencies for use against Indians and under which law?

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