In a defining ruling on the Pegasus snooping case that garnered global headlines, India's Supreme Court has said that the power of the State to snoop in the name of national security into the “sacred private space” of individuals wass not absolute and every citizen of India ought to be protected against violations of privacy. 

“The mere invocation of national security by the state does not render the court a mute spectator,” Chief Justice N V Ramana said. The state did not get “a free pass every time the spectre of national security is raised… National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”.

The court further said that India could not remain mute in the face of Pegasus allegations when other countries across the globe had taken them seriously.

The Supreme Court on Wednesday appointed an expert technical committee overseen by a former Supreme Court judge, Justice R.V. Raveendran, to examine charges that the Modi government used Israeli software Pegasus to spy on citizens. Pegasus is at the centre of a global collaborative investigative project that has found that the spyware was used to target, among people in several countries, mostly autocracies,, hundreds of mobile phones in India.

A three-judge Bench led by Chief Justice of India N.V. Ramana explained that it decided to refuse the government’s offer to appoint an expert committee to investigate the allegations because “such a course of action would violate the settled judicial principle against bias, i.e., that ‘justice must not only be done, but also be seen to be done’”.

The court said it consciously avoided “political thickets” but could not cower when allegations involved a “grave” threat to the privacy and free speech of the entire citizenry and raised the possibility of involvement of the Government, or even a foreign power, behind the surveillance. The court said the petitions filed before it, including ones by veteran journalists N. Ram and Sashi Kumar, Editors Guild of India and victims of alleged snooping, had raised “Orwellian concerns” about an all-pervasive technology like Pegasus.

It said the gnawing fear of being spied on affected liberty and had a “chilling effect”. Ordinary citizens, and not just activists and journalists, started to drift towards self-censorship.  The court asked the committee to submit its report “expeditiously”. It posted the next hearing after eight weeks.

“Members of a civilised democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation that enables us to exercise our choices, liberties, and freedom. It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights,” the Bench, also comprising Justices Surya Kant and Hima Kohli, said in the order.

The court highlighted how the Union of India had not specifically denied the allegations. The government, despite being given several opportunities by the court, chose to respond with an “omnibus and vague denial” in a “limited affidavit”. The Government had refused to take a clear stand in court, citing national security reasons, despite the fact that the Pegasus allegations had first surfaced two years ago, The Hindu newspaper noted.