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.
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