Pegasus, National Security and Judicial Review

 

INTRODUCTION 

 

Today, I will talk about the case of Manohar Lal Sharma v. Union of India & Others, Writ Petition (Criminal) No. 314 of 2021, wherein vide Order dated 27.10.2021, the Hon’ble Supreme Court inter alia discussed the scope of judicial review in matters pertaining to national security. This was done in the context of a software by the name of ‘Pegasus’ that was allegedly used for spying on private individuals by various governments across the world. There were various other issues discussed as well but in the present post, I will confine myself to the arguments relating to ‘national security.’

 

Interestingly, the opening sentence of the Order quotes the book 1984 by George Orwell stating that “if you want to keep a secret, you must also hide it from yourself.” The facts of the case, though very interesting, would be skipped on this show since my purpose is to understand the jurisprudential approach adopted by the Court with respect to the scope of judicial review in cases involving national security. But in any case, it would be apposite to provide a brief background of the entire matter.

 

BACKGROUND 

 

So, what is Pegasus? According to the Hon’ble Supreme Court, “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 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.”

 

Thus, keeping this in mind, it is to be understood that certain petitioners approached the Hon’ble Supreme Court contending that their right to privacy may have been violated by usage of such technologies. On the contrary, t he State contended that due to security concerns, it is unable to reveal anything to the Petitioners. According to the Court, the Respondent State has only filed a “Limited Affidavit” in the matter that does not provide any clarity to the facts of the matter at hand even to the Court. Thus, the Hon’ble Court constituted a committee to look into the veracity of the allegations. But while doing so, the Court also discussed the scope of judicial review where the matter pertains to national security. Let us understand the pertinent observations by the Court.

 

OBSERVATIONS BY THE COURT 

 

Firstly, the Court cited the case of Ram Jethmalani v. Union of India, (2011) 8 SCC 1, wherein it was held that “withholding of information from the 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.”

 

Secondly, the Court observed that in the present case, the State Respondent has not revealed any information to the Petitioners citing security concerns in terms of the Ram Jethmalani Judgment (supra) and it is also true that “in matters pertaining to national security, the scope of judicial review is limited”, yet “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.”

 

Thirdly, the Court opined that if the State wishes to withhold some information on account of security concerns, it must satisfy the Court by bringing out the relevant facts that justify maintenance of secrecy in a particular case. “The mere invocation of national security by the State does not render the Court a mute spectator.”

 

Fourthly, the Court noted that there is 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.”

 

And lastly, the Court also cited the celebrated case of Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461, wherein it was observed that “judicial review is not intended to create what is sometimes called judicial oligarchy, the aristrocracy (sic) of the robe, covert legislation, or Judge­made law” and the judges are supposed to “uphold the Constitution and the laws without fear or favour.”

 

Those were the observations by the Court. So, what are my concluding remarks.

 

CONCLUDING REMARKS 

 

With respect to the issue of national security, I concur with the reasoning of the Court that merely by utterance of the term ‘national security’, the Djinn of ‘national security’ will not get invoked automatically and oust the power of judicial review of the Courts. The least the State is expected to do is place true and accurate facts before the Court, if not to the opposite party or the petitioners. ‘National Security’ is not just the concern of the state. The citizens as also the judiciary are also concerned about national security. But whether such national security actually exists must be justified to the Courts. Otherwise, in the name of ‘national security’, delinquent officials of the state would start wreaking havoc on the rights of the citizens and when the question of their accountability would arise, then all the state has to do is utter one magical term, i.e., national security, and all their sins would get washed away and the Courts will have nothing to say.