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.
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