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'Compelled To Determine Truth' : 7 Circumstances Cited By Supreme Court To Constitute Pegasus Committee
LIVELAW NEWS NETWORK
27 Oct 2021 12:02 PM IST
The Supreme Court on Wednesday ordered the constitution of a 3-member independent expert committee to probe the allegations of widespread and targeted surveillance of politicians, journalists, activist etc using the Pegasus spyware.The committee's functioning will be overseen by former Supreme Court judge Justice RV Raveendran.A bench comprising the Chief Justice of India NV Ramana, Justice...
The Supreme Court on Wednesday ordered the constitution of a 3-member independent expert committee to probe the allegations of widespread and targeted surveillance of politicians, journalists, activist etc using the Pegasus spyware.
The committee's functioning will be overseen by former Supreme Court judge Justice RV Raveendran.
A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli said that the Court was "compelled to take up the cause to determine the truth and get to the bottom of the allegations", in view of the gravity of the issue and also due to the lack of information furnished by the Union of India regarding the use of the Pegasus spyware.
The judgment listed 7 compelling circumstances which prompted the Court to constitute the technical committee :
i. Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined.
ii. The entire citizenry is affected by such allegations due to the potential chilling effect.
iii. No clear stand taken by the Respondent-Union of India regarding actions taken by it.
iv. Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.
v. Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.
vi. Allegations that the Union or State Governments are party to the rights' deprivations of the citizens.
vii. Limitation under writ jurisdiction to delve into factual aspects. For instance, even the question of usage of the technology on citizens, which is the jurisdictional fact, is disputed and requires further factual examination.
The Union Government's prayer to allow it to constitute a committee was rejected by the Court observing that 'justice must not only be done, but also be seen to be done". Allowing the Centre to probe the allegations by itself will violate the judicial principles against bias.
Union of India did not provide clarity
The Court said that it had initial reservations about the petitions filed on the basis of newspaper reports. However, taking note of the seriousness of the issue, notice was issued to the Union of India.
This Court gave ample time to Centre to disclose all information regarding the pegasus attack since 2019. However only a limited affidavit was filed throwing no light.
If the respondent Union of India had made their stand clear, it would have been help. However, the respondent Union of India declined to offer information. There was only a vague and omnibus denial of allegations by the Union.
"We had made it clear to the learned Solicitor General on many occasions that we would not push the Respondent-Union of India to provide any information that may affect the national security concerns of the country. However, despite the repeated assurances and opportunities given, ultimately the Respondent-Union of India has placed on record what they call a "limited affidavit", which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand.
If the Respondent-Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different", the Court observed in the judgment.
Mere invocation of national security does not render the Court a mere spectator
While acknowledging that the Union of India can decline information when issues of national security are involved, the Court said that mere invocation of "national security" can't render the Court a mute spectator.
"However, this does not mean that the State gets 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. Although this Court should be circumspect in encroaching the domain of national security, no omnibus prohibition can be called for against judicial review.
The Respondent-Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns. They must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator"
Vague and omnibus denial by Union of India not sufficient.
The Court observed that the Petitioners have placed on record certain material that prima facie merits consideration by the Court.
"There has been no specific denial of any of the facts averred by the Petitioners by the Respondent-Union of India. There has only been an omnibus and vague denial in the "limited affidavit" filed by the Respondent-Union of India, which cannot be sufficient", the Court observed in the judgment.
"In such circumstances, we have no option but to accept the prima facie case made out by the Petitioners to examine the allegations made", the Court added.
Case Details
Case Title : Manohar Lal Sharma versus Union of India and connected cases
Citation : LL 2021 SC 600
