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Monday, November 29, 2021

Pegasus case: SC moved the needle on privacy, press freedom, Govt security alibi

The three-judge bench, in ordering a probe into Pegasus, flagged that its intervention is to “uphold the constitutional aspirations and rule of law” without being “consumed in (the) political rhetoric.”

Written by Apurva Vishwanath | New Delhi |
Updated: October 28, 2021 9:40:32 am
Order by Bench with CJI Ramana, Justices Kohli and Kant (Express Illustration)

At the heart of its significant order on the Pegasus snoop allegations, lie three key imperatives that the Supreme Court has underlined: the right to privacy of citizens; freedom of the press including the right of journalists to ensure protection of their sources; and the limits of national security as an alibi by the Government to block disclosure of facts related to citizen’s rights.

The three-judge bench, headed by Chief Justice of India N V Ramana, in ordering a probe by a committee headed by former Supreme Court judge R V Raveendran, flagged that its intervention is to “uphold the constitutional aspirations and rule of law” without being “consumed in (the) political rhetoric.”

On the government’s refusal to file a detailed response to the allegations made by the petitioners, the court cited the 2011 landmark ruling on black money Ram Jethmalani v. Union of India to say that the Government “should not take an adversarial position when the fundamental rights of citizens are at threat”.

“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,” the court said.

The apex court also refused to accept the blanket argument of national security made by Solicitor General of India Tushar Mehta when he refused to file a detailed affidavit or answer whether the Centre had procured the spyware at all.

Indeed, the court moved the needle on holding the government accountable when it refused to accept the sweeping use of national security to deny information to the court. In fact, it said that now on, the Government will have to plead its case.

“Of course, the Respondent­ Union of India may decline to provide information when constitutional considerations exist, 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 Court said.

That’s not all. The court also rejected the government’s plea to set up its own probe. “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’,” it said.

Citing the right to privacy, the court said that “privacy is not the singular concern of journalists or social activists.”

“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.”

The court has set six terms of reference for the Justice Raveendran Committee that range from confirming the use of Pegasus spyware on citizens, details of those affected to whether the government or any other party procured the spyware to use on citizens and the laws that could have allowed such use. Significantly, these are the same questions the government refused to answer before the court.

The court has also asked the Raveendran committee to make recommendations on a legal and policy framework to protect citizens against surveillance and enhance cyber security of the country.

Significantly, the court also emphasised freedom of press and the right of journalists to protect sources as a compelling reason to initiate the probe.

“Such chilling effect (alleged surveillance) on the freedom of speech is an assault on the vital public­ watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information,” the court said.

“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 of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest,” it added.

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