Pegasus, Privacy and Surveillance - Views of the Supreme Court

 

INTRODUCTION

 

Today, I will again 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 contours of the right to privacy in the context of a cyber-weapon by the name of ‘Pegasus’ that was allegedly used for spying on private individuals by various governments across the world.

 

On yesterday’s show, I had discussed the issue of national security that was also dealt with in this case. I had also talked about the basics facts pertaining to the matter. To know more about it, please visit my last show, the link for which is provided in the description below.

https://www.desikanoon.co.in/2021/10/pegasus-national-security-supreme-court.html

 

BACKGROUND

 

Briefly speaking, “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.” Recently, certain individuals approached the Hon’ble Supreme Court contending that their privacy has been violated by usage of such technologies. The Hon’ble Court constituted a committee to look into the veracity of the allegations. But while doing so, the Court also remarked on the right to privacy of individuals. In this regard, let us understand the pertinent observations by the Court.

 

OBSERVATIONS BY THE COURT

 

Firstly, the Court traced the origins of the right to privacy by citing a case of the year 1604, Semayane’s case, wherein it was observed that “every man’s house is his castle”. According to the Court, such observation marked “the beginning of the development of the law protecting people against unlawful warrants and searches.”

 

Secondly, the Court observed that “an expanded meaning has been given to the right to life in India, which accepts that “life” does not refer to mere animal existence but encapsulates a certain assured quality” and since we live in an era of information revolution, it must be recognized that technology can have both positive as well as negative effects in relation to private space of an individual.

 

Thirdly, the Court cited the case of K.S. Puttaswamy (Privacy­9J.) v. Union of India, (2017) 10 SCC 1, wherein it was held that privacy is a constitutionally protected right under Article 21 of the Constitution of India and to invade or impose reasonable restrictions on life or personal liberty or privacy of a person, three conditions must be satisfied.

 

a. A valid law must exist.

b. The law must have a legitimate aim.

c. There must be a rational nexus between the aim and the means to achieve those aims or objects.

 

Fourthly, the Court noted that “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” and if the same is done by the state, it must be justified on constitutional grounds.

 

Fifthly, the Court also acknowledged that spying and surveillance is used world over to fight against terrorism and violence but allowing indiscriminate spying of individuals would be antithetical to the concept of rule of law.

 

Sixthly, the Court explained that the threat of being spied upon has a chilling effect on the freedom of speech since surveillance and spying undermine the ability of the press to provide accurate and reliable information. The Court went on to state that a necessary corollary of the right to freedom of press 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.”

 

And lastly, the Court while constituting a committee to look into the allegations raised, also listed out the compelling circumstances that forced it to take such a step. Some of the pertinent ones are: -

 

a. “Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined.”

b. “The entire citizenry is affected by such allegations due to the potential chilling effect.”

c. Allegations against the State and no clear answer to it.

d. “Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.”

 

Those were the pertinent observations by the Court in relation to privacy. So, what are my concluding remarks?

 

CONCLUDING REMARKS

 

Though the Hon’ble Supreme Court is making ample efforts to ensure that right to privacy is respected by everyone, yet forgive me for being blunt, the State-Corporate nexus has left no stone unturned to gather data of the people. We, the people of India, grant permissions every day to the Apps in the Play Store to snoop on us. The Court rightly said that common citizens are not much aware about the nuances relating to privacy. It being said, I must congratulate the Hon’ble Supreme Court for at least acknowledging that the present state of affairs is a sorry one and that the truth must prevail.