Protection Of Journalistic Sources A Basic Condition For Freedom Of Press : Supreme Court In Pegasus Case

The Supreme Court on Monday ordered the constitution of a 3-member independent expert committee to probe into the allegations of widespread and targeted surveillance of activists, journalists, politicians and constitutional authorities using the Pegasus spyware. The committee will be headed 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 on Monday expressed strong reservations against the practice of indiscriminate surveillance of individuals in a democracy that lead to a  'chilling effect' on the freedom of speech. 

"In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution", the Bench observed. 

The Court also observed that surveillance will have a chilling effect on the freedom of press. The Court noted that the protection of journalistic sources is one of the basic conditions for the freedom of press.

The judgment observed :

"An important and necessary corollary of such a right 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.

Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potential chilling effect that snooping techniques may have, this Court's task in the present matter, where certain grave allegations of infringement of the rights of the citizens of the country have been raised, assumes great significance. In this light, this Court is compelled to take up the cause to determine the truth and get to the bottom of the allegations made herein".

Any restriction on right to privacy must necessarily pass constitutional scrutiny 

The Court acknowledged that while technology is a useful tool for improving the lives of the people, it can also lead to unreasonable State intrusions and breach the right to privacy of an individual. It was also categorically underscored that any any restrictions imposed on the right to privacy must necessarily pass constitutional scrutiny. 

"Members of a civilized 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 which enables us to exercise our choices, liberties, and freedom", the Court further opined. 

Interference with right to privacy must take place only when it is proportional and is absolutely necessary for protecting national security/interest 

The Bench further enumerated that the State must at all times strive to achieve a balance between State's duty to protect national interests and infringement of privacy of citizens. Citing an instance, the Court lamented that in today's world, information gathered by intelligence agencies through surveillance is essential for the fight against violence and terror. However, any interference with the right to privacy of an individual must be carried out 'only when it is absolutely necessary for protecting national security/interest and is proportional', the Court highlighted. The considerations for usage of such alleged technology, ought to be evidence based, it was further noted. 

It may be noted that during prior hearings, Solicitor General Tushar Mehta had argued before the Bench that the instant matter was related to national security, and hence cannot be made a subject matter of a judicial debate or public discourse. He had further expressed the Centre's unwillingness to file any additional affidavit divulging whether the Centre had used any particular software for security purposes by citing concerns of national security. 

Surveillance causes chilling effect on the freedom of press which is an important pillar of democracy 

The Court further held that 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. This in many instances can lead to self-censorship, the Court pointed out. 

Opining on the effect disproportionate State surveillance can have on the freedom of press, the Court remarked, 

"This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the vital public-watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information."

The Bench thus noted that it is compelled to 'take up the cause to determine the truth and get to the bottom of the allegations' in light of the pressing need to protect journalistic sources for press freedom in a democratic society and the potential chilling effect that snooping techniques may have. 

Also Read: 'Compelled To Determine Truth' : 7 Circumstances Cited By Supreme Court To Constitute Pegasus Committee

State Won't Get A Free Pass By Mere Mention Of "National Security" : SC In Pegasus Case