Supreme Court orders an independent investigation into the Pegasus Spyware Attack

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RIGHT TO PRIVACY OF AN INDIVIDUAL TO BE BALANCED AGAINST THE SECURITY INTERESTS OF THE STATE

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In matters pertaining to national security, the scope of judicial review is limited. However, mere invocation of national security by the State is not sufficient to grant it blanket immunity against judicial review. If the State is declining to provide information when constitutional considerations exist such as security of state or immunity under a specific statute, it is incumbent on the State to not only plead but also prove and justify the same to the Supreme Court on affidavit.

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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. However, if done by the State, the same must be justified on constitutional grounds.

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The legal position laid down by the Supreme Court in the seminal decision of K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 was reiterated that an invasion of life or personal liberty must meet the threefold requirement of legality, which postulates the existence of law; need, defined in terms of a legitimate State aim; and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.

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The Supreme Court observed that it is cognizant of the fact that information gathered by intelligence agencies through surveillance is essential to fight against violence and terror. To access this 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. Further, 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 of India.

2.     

FREEDOM OF THE PRESS

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Surveillance of the press could result in self censorship by the press itself, directly impinging upon the freedom of the press and consequently on the freedom of speech. This may undermine the ability of the press to provide accurate and reliable information.

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An important 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 of the press.

3.     

RECOMMENDATIONS SOLICITED FROM TECHNICAL COMMITTEE

The Supreme Court, being satisfied that a prima facie case was made out by the petitioners to examine the allegations in the writ petitions, ordered an independent investigation by a Technical Committee comprising of three members, including those who are experts in cyber security, digital forensics, networks and hardware, to be overseen by Justice R.V. Raveendran, former Judge of the Supreme Court. In addition to entrusting the task of investigating specific questions in relation to the use of Pegasus, the Supreme Court has also solicited recommendations regarding the following from the Technical Committee:

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Enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.

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Enhancing and improving the cyber security of the nation and its assets.

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Ensuring prevention of invasion of citizens’ right to privacy, otherwise than in accordance with law, by State and/or non-State entities through such spywares.

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Establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.

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Setting up of a well-equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country.

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Any adhoc arrangement that may be made by the Supreme Court as an interim measure for the protection of citizen’s rights, pending filling up of lacunae by the Parliament of India.