Manohar Lal Sharma v. Union of India (2022) – Pegasus Spyware Case

Case Brief

The Pegasus Spyware case revolves around allegations of unauthorized surveillance of Indian citizens using the Pegasus spyware developed by the NSO Group, an Israeli technology firm. Pegasus is an advanced tool capable of infiltrating devices, extracting sensitive data, and remotely activating cameras and microphones.

The controversy arose when reports by global media in 2021 suggested that out of approximately 50,000 phone numbers allegedly surveilled worldwide, about 300 belonged to Indian citizens. The individuals targeted included journalists, politicians, activists, and court officials. The NSO Group claimed that it only sold Pegasus to vetted government agencies for law enforcement and national security purposes.

Several Writ Petitions were filed, including by advocate Manohar Lal Sharma, seeking an independent investigation into whether Pegasus was deployed by Indian government agencies or foreign entities against Indian citizens. The petitioners argued that such actions violated fundamental rights, including:

• Right to Privacy (Article 21)
• Freedom of Speech and Expression (Article 19(1)(a))

The Union of India denied these allegations in a limited affidavit, citing national security concerns, but refused to provide further clarification.

Issues Raised

1. Can the State refuse to disclose information on grounds of national security in cases involving fundamental rights?
2. Was Pegasus spyware used by the Union of India or its agencies for surveillance?

Decision of the Court

1. Surveillance and Right to Privacy:
   The Court acknowledged that unauthorized surveillance directly infringes the right to privacy, as established in the landmark judgment of K.S. Puttaswamy v. Union of India (2017). However, it also recognized that the right to privacy is not absolute. Any encroachment must satisfy the test of:
   • Legality: Surveillance must be authorized by law.
   • Necessity: It must serve a legitimate state purpose.
   • Proportionality: The means must be the least intrusive to achieve the objective.
2. State’s Obligation to Justify Non-Disclosure:
   While the Court accepted that national security concerns could justify withholding certain information, it emphasized that such grounds must be specifically pleaded and proven. A vague denial, as provided by the Union of India in its affidavit, was deemed insufficient.
3. Independent Technical Committee:
   Recognizing the seriousness of the allegations and the insufficiency of the government’s response, the Court constituted a three-member Technical Committee under the supervision of retired Justice R.V. Raveendran. The Committee was tasked with:
   • Investigating whether Pegasus was used on Indian citizens.
   • Examining the legality of such actions, if proven.
   • Recommending improvements to India’s privacy and surveillance framework.
4. Accountability for National Security Claims:
   The Court clarified that invoking national security cannot become a blanket excuse to evade judicial scrutiny. While judicial review in national security matters is limited, it remains essential to prevent abuse of power.

Findings and Recommendations of the Committee (2022)

1. No Conclusive Evidence of Pegasus Use:
   • The Committee examined devices submitted by petitioners but found no definitive proof of Pegasus spyware.
   • However, it noted possibilities of other spyware or malware being used.
2. Government Non-Cooperation:
   • The Committee reported insufficient cooperation from the Union of India, further deepening concerns about transparency.
3. Need for Legal Reforms:
   • The Committee highlighted gaps in India’s legal framework for surveillance and suggested comprehensive updates to protect citizens’ privacy.

Significance of the Judgment

1. Privacy as a Fundamental Right:
   • This case reaffirmed privacy as a constitutional right, demanding strict scrutiny of government actions that potentially infringe it.
2. Judicial Oversight of Surveillance:
   • The judgment underscored the judiciary’s role in ensuring that national security is not misused as a pretext to bypass constitutional rights.
3. Call for Stronger Legislation:
   • It highlighted deficiencies in India’s existing surveillance laws, such as the Indian Telegraph Act, 1885, and the IT Act, 2000, calling for robust reforms to address modern privacy challenges.
4. Transparency in Governance:
   • The case set a precedent for requiring the State to balance secrecy with accountability, even in sensitive matters.

Judgment

The Supreme Court delivered a balanced judgment, asserting that citizens’ rights to privacy and free speech cannot be compromised without due process.

The Court criticized the Union of India’s vague affidavit and emphasized the need for transparency in cases involving fundamental rights.

The Court mandated the Technical Committee to examine all allegations and submit a detailed report. It reserved its right to review the findings and issue further directions.

The Court emphasized the urgent need to reform surveillance laws to align with constitutional principles and safeguard individuals’ privacy in the digital age.

Conclusion

The Pegasus Spyware case is a landmark in India’s evolving jurisprudence on privacy and surveillance. While the Committee’s findings were inconclusive, the judgment emphasized the importance of constitutional safeguards and legal scrutiny in the face of advancing surveillance technologies. It remains a critical reminder of the need for vigilance to protect fundamental rights in the digital age.