MANOHAR LAL SHARMA versus UNION OF INDIA AND ORS. on 27 October 2021

ORDER

The Court is convened through Video Conferencing.

“If you want to keep a secret, you must also hide it from yourself.”

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-George Orwell, 1984

1. The present batch of Writ Petitions raise an Orwellian concern,about the alleged possibility of utilizing modern technology to hear whatyou hear, see what you see and to know what you do. In this context,this Court is called upon to examine an allegation of the use of such aGtechnology, its utility, need and alleged abuse. We make it clear that oureffort is to uphold the constitutional aspirations and rule of law, withoutallowing ourselves to be consumed in the political rhetoric. This Courthas always been conscious of not entering the political thicket. However,at the same time, it has never cowered from protecting all from theHabuses of fundamental rights. All that we would like to observe in this regard is a reiteration of what had already been said by this Courtin Kesavananda Bharati v. State of Kerala, (Opinion of JusticeKhanna) AIR 1973 SC 1461:

“1535….Judicial review is not intended to create what issometimes called judicial oligarchy, the aristrocracy (sic) of therobe, covert legislation, or Judge-made law. The proper forum tofight for the wise use of the legislative authority is that of publicopinion and legislative assemblies. Such contest cannot betransferred to the judicial arena. That all constitutionalinterpretations have political consequences should not obliteratethe fact that the decision has to be arrived at in the calm anddispassionate atmosphere of the court room, that Judges in orderto give legitimacy to their decision have to keep aloof from the dinand controversy of politics and that the fluctuating fortunes ofrival political parties can have for them only academic interest.Their primary duty is to uphold the Constitution and the laws withoutfear or favour and in doing so, they cannot allow any politicalideology or economic theory, which may have caught their fancy,to colour the decision…”

2. A short conspectus of the events leading up to the presentbatch of petitions would not be misplaced to highlight the scope of theissues at hand. In September 2018, Citizen Lab, which is a laboratorybased out of the University of Toronto, Canada, released a report detailingthe software capabilities of a “spyware suite” called Pegasus that wasbeing produced by an Israeli Technology firm, viz., the NSO Group. Thereport indicated that individuals from nearly 45 countries were suspectedto have been affected.

3. The Pegasus suite of spywares can allegedly be used tocompromise the digital devices of an individual through zero clickvulnerabilities, i.e., without requiring any action on the part of the targetof the software. Once the software infiltrates an individual’s device, itallegedly has the capacity to access the entire stored data on the device,and has real time access to emails, texts, phone calls, as well as thecamera and sound recording capabilities of the device. Once the deviceis infiltrated using Pegasus, the entire control over the device is allegedlyhanded over to the Pegasus user who can then remotely control all thefunctionalities of the device and switch different features on or off. TheNSO Group purportedly sells this extremely powerful software only to ABC

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Acertain undisclosed Governments and the end user of its products are“exclusively government intelligence and law enforcement agencies” asper its own website.

4. In May 2019, the global messaging giant WhatsApp Inc.identified a vulnerability in its software that enabled Pegasus spyware toBinfiltrate the devices of WhatsApp’s users. This news was followed bya disclosure that the devices of certain Indians were also affected, whichfact was acknowledged by the then Hon’ble Minister of Law andElectronics and Information Technology in a statement made in theParliament on 20[th] November 2019.

5. On 15[th] June 2020, Citizen Lab, in collaboration with theCinternational human rights organization, Amnesty International uncoveredanother spyware campaign which allegedly targeted nine individuals inIndia, some of whom were already suspected targets in the first spywareattack.

6. On 18[th] July 2021, a consortium of nearly 17 journalisticDorganizations from around the world, including one Indian organization,released the results of a long investigative effort indicating the allegeduse of the Pegasus software on several private individuals. Thisinvestigative effort was based on a list of some 50,000 leaked numberswhich were allegedly under surveillance by clients of the NSO GroupEthrough the Pegasus software. Initially, it was discovered that nearly300 of these numbers belonged to Indians, many of whom are seniorjournalists, doctors, political persons, and even some Court staff. At thetime of filing of the Writ Petitions, nearly 10 Indians’ devices wereallegedly forensically analyzed to confirm the presence of the Pegasussoftware.F

7. The above reports resulted in largescale action across the globe,with certain foreign governments even diplomatically engaging with theIsraeli Government to determine the veracity of the allegations raised,while other governments have initiated proceedings internally to determinethe truth of the same.G

8. Respondent-Union of India, through the Hon’ble Minister ofRailways, Communications and Electronics and Information Technology,took the stand in Parliament on 18[th] July 2021, when asked about thealleged cyberattack and spyware use, that the reports published had nofactual basis. The Minister also stated that the Amnesty report itselfHindicated that the mere mention of a particular number in the list did not confirm whether the same was infected by Pegasus or not. Further, theMinister stated that NSO had itself factually contradicted many of theclaims made in the Amnesty report. Finally, he stated that the Indianstatutory and legal regime relating to surveillance and interception ofcommunication is extremely rigorous, and no illegal surveillance couldtake place.

9. Some of the Writ Petitioners before this Court allege to bedirect victims of the Pegasus attack, while others are Public InterestLitigants. They raise the issue of the inaction on the part of theRespondent-Union of India to seriously consider the allegations raised,relating to the purported cyberattack on citizens of this country.Additionally, the apprehension expressed by some Petitioners relates tothe fact that, keeping in mind the NSO Group disclosure that it sold itsPegasus software only to vetted Governments, either some foreigngovernment or certain agencies of the Respondent-Union of India areusing the said software on citizens of the country without following thedue procedure established under law. Therefore, to ensure credibility ofthe process, most of the Petitioners are seeking an independentinvestigation into the allegations.

10. Before considering the issues at hand on merits, it is necessaryfor this Court to summarize the events that transpired in the Courtroomproceedings, to give some context to the order being passed.

11. On 10[th] August 2021, it was recorded by this Court that a copyof some of the petitions in this batch had been served on the learnedSolicitor General. The learned Solicitor General took an adjournment atthat time to get instructions.

12. On 16[th] August 2021, a “limited affidavit” was placed on recordby the learned Solicitor General that was filed by the Additional Secretary,Ministry of Electronics and Information Technology, Union of India. Therelevant parts of the limited affidavit filed by the Respondent- Union ofIndia are as follows:

“2. I state and submit thatdue to the limited time at the disposalof the deponent/respondents, it is not possible to deal withall the facts stated and the contentions raised in the batch’of petitions before this Honble Court. I am therefore, filingthis limited affidavit at this stage while reserving liberty tofile further affidavit hereafter in detail.

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AI, however, respectfully submit that my not dealing withany of the petitions para wise may not be treated as my havingadmitted the truthfulness or otherwise of any of the contentsthereof.

3. At the outset, it is submitted that I hereby unequivocally denyBany and all of the allegations made against the Respondents in thecaptioned petition and other connected petitions. A bare perusalof the captioned petition and other connected petitions makes itclear that the same are based on conjectures and surmises or onother unsubstantiated media reports or incomplete oruncorroborated material. It is submitted that the same cannot beCthe basis for invoking the writ jurisdiction of this Hon’ble Court.

4. It is submitted that this question stands already clarified on thefloor of the Parliament by the Hon’ble Minister of Railways,Communications and Electronics & Information Technology ofIndia, Government of India. A copy of the statement of the Hon’bleDMinister is attached herewith and marked as Annexure R-1. Inthat view of the matter, in the respectful submission of thedeponent, nothing further needs to be done at the behest of thePetitioner, more particularly when they have not made out anycase.

E5. It is, however, submitted thatwith a view to dispel any wrongnarrative spread by certain vested interests and with anobject of examining the issue raised, the Union of Indiawill constitute a Committee of Experts in the field which”will go in to all aspects of the issue.

FOn that day, we heard learned senior counsel appearing on behalfof the Petitioners and the learned Solicitor General at some length andadjourned the matter for further hearing.

13. On the next date of hearing, on 17[th] August 2021, this Courtindicated to the learned Solicitor General, while issuing notice to theRespondent-Union of India, that the limited affidavit filed by them wasGinsufficient for the Court to come to any conclusion regarding the standof the Respondent-Union of India with respect to the allegations raisedby the Petitioners. As the limited affidavit itself recorded that the detailedfacts were not adverted to due to a paucity of time, we indicated to thelearned Solicitor General that we were willing to give them further timeHto enable the Respondent-Union of India to file a more detailed affidavit.

The learned Solicitor General indicated his apprehension that the disclosureof certain facts might affect the national security and defense of thenation.

14. This Court clarified at that juncture that it was not interestedin any information that may have a deleterious impact on the security ofthe country. However, the Respondent-Union of India could still placeon record facts pertaining to the events highlighted by the Petitioners,without disclosing information adjudged to be sensitive by the relevantauthorities.

15. Mr. Kapil Sibal, learned senior counsel appearing for thePetitioners in Writ Petition (C) Nos. 826 and 851 of 2021, fairly statedthat the Petitioners were also concerned about the national interest andwould not press for any such information. The learned Solicitor Generalagain took some time to seek instructions.

16. When the matter was next listed on 07[th] September 2021, thelearned Solicitor General requested an adjournment, and we directedthat the matter be listed on 13[th] September 2021.

17. On 13[th] September 2021, we were again informed by thelearned Solicitor General that placing the information sought by thePetitioners on an affidavit would be detrimental to the security interestsof the nation. The learned Solicitor General submitted that suchinformation could not be made a matter of public debate as the samecould be used by terror groups to hamper national security. He reiteratedthe statement dated 18[th] July 2021 made by the Hon’ble Minister ofRailways, Communications and Electronics and Information Technologyon the floor of the Parliament regarding the statutory mechanismsurrounding surveillance and interception in the country which ensuresthat unauthorized surveillance does not take place. He finally submittedthat, to assuage the concerns of the public and to dispel any wrongnarratives, considering the technical nature of the issues, the Respondent-Union of India would be willing to constitute an Expert Committee whichwill go into all aspects and file a report before this Court.

18. Mr. Kapil Sibal, learned senior counsel appearing on behalf ofthe Petitioners in Writ Petition (C) Nos. 826 and 851 of 2021, submittedthat the Respondent-Union of India should not act in a manner that wouldprevent the Court from rendering justice and should not withholdinformation from the Court in a matter concerning the alleged violationof fundamental rights of citizens. He submitted that in the year 2019, A

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Awhen certain reports of Pegasus hacking WhatsApp came to light, thethen Hon’ble Minister of Law and Information Technology andCommunication had acknowledged the reports of hacking in Parliament,but the Respondent-Union of India had not indicated what actions weretaken subsequently, which information they could have disclosed onaffidavit. Learned senior counsel submitted that such inaction by theBRespondent-Union was a matter of grave concern, particularly whenreputed international organizations with no reason for bias against thenation had also accepted the fact of such an attack having been made.Mr. Sibal finally submitted that an independent probe into the allegedincident required to take place under the supervision of retired Judges ofCthis Court, as was ordered by this Court in the Jain Hawala case. Heobjected to the suggestion of the learned Solicitor General that theRespondent-Union of India itself be allowed to form a Committee on theground that any Committee formed to probe the allegations raised by thePetitioners should be completely independent from the Respondent-Unionof India.D

19. Mr. Shyam Divan, learned senior counsel appearing on behalfof the Petitioner in Writ Petition (C) No. 849 of 2021 who claims to beone of the parties whose phone was directly affected by Pegasus,submitted that Pegasus enabled an entity to not only surveil or spy on anindividual, but also allowed them to implant false documents and evidenceEin a device. He relied on affidavits filed by two experts in the field ofcyber security to buttress his submission regarding the nature and functionof the software. Mr. Divan submitted that once such a largescalecyberattack and threat had been made public and brought to theknowledge of the Respondent-Union of India, it was the State’sFresponsibility to take necessary action to protect the interests andfundamental rights of the citizens, particularly when there existed therisk that such an attack was made by a foreign entity. Mr. Divan pressedfor the interim relief sought in Writ Petition (C) No. 849 of 2021, wherebya response was sought on affidavit from the Cabinet Secretary. Mr.Divan also supported the prayer made by Mr. Sibal regarding theGconstitution of a special Committee or Special Investigation Team toprobe the allegations.

20. Mr. Rakesh Dwivedi, learned senior counsel appearing onbehalf of the Petitioners in Writ Petition (C) No. 853 of 2021 submittedthat the Petitioners are senior journalists who are victims of the PegasusHattack. He submitted that if the Respondent-Union of India had made a statement on affidavit that it had not used a malware or spied on thePetitioners in an unauthorized manner, that would have been the end ofthe matter. Instead, the Respondent-Union of India had not providedany information on affidavit. He therefore urged the Court to constitutean independent Committee under its supervision rather than allowing theRespondent-Union of India to constitute a Committee, as suggested bythe learned Solicitor General, to avoid any credibility issues. He furthersubmitted that requiring the Petitioners to hand over their phones to aCommittee appointed by the Respondent-Union of India, when certainallegations had been raised against the Respondent-Union of India, wouldamount to a secret exercise whose results would not be trusted by thePetitioners or the public.

21. Mr. Dinesh Dwivedi, learned senior counsel appearing on behalfof the Petitioner in Writ Petition (C) No. 848 of 2021 submitted that hisclient is a respected journalist whose device had been infected with thePegasus malware. The main thrust of his submission was that if anypleading was not specifically denied, it would be deemed to have beenadmitted. As the Respondent-Union of India had not specifically deniedthe Petitioner’s allegation, the same should therefore be deemed to beadmitted by the Respondent-Union of India. Learned senior counselsubmitted that such an attack on the privacy of the Petitioner was notonly a violation of his fundamental right, but also amounted to chilling hisfreedom of speech as a journalist.

22. Ms. Meenakshi Arora, learned senior counsel appearing onbehalf of the Petitioner in Writ Petition (C) No. 829 of 2021, supportedthe prayer made by Mr. Kapil Sibal regarding the constitution of anindependent Special Investigation Team headed by a retired Judge toinvestigate the matter.

23. Mr. Colin Gonsalves, learned senior counsel appearing on behalfof the Petitioners in Writ Petition (C) No. 909 of 2021, wherein PetitionerNo. 1 is a journalist, lawyer and human rights activist who is an affectedparty, while Petitioner No. 2 is a registered society which works on thepromotion and protection of digital rights and digital freedom in India,submitted that a number of such digital interceptions were being conductedby the States and the Respondent-Union of India. He submitted that, inlight of the allegations raised against the Respondent-Union of India inthe present matter, it would not be appropriate to allow the Respondent-Union of India to form a Committee to investigate the present allegations.Further, the learned senior counsel pointed to the actions taken by various A

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Aforeign governments in light of the purported spyware attack to highlightthe veracity of the reports by news agencies and the seriousness withwhich the allegations were being viewed in other countries.

24. Mr. M. L. Sharma, petitioner-in-person in Writ Petition (Crl.)No. 314 of 2021, submitted that the Pegasus suite of spywares wasBdifferent from other spyware as it allowed an agency to gain completecontrol over an individual’s device. He submitted that the software couldbe used to plant false evidence into an individual’s device, which couldthen be used to implicate the said person. He therefore submitted thatthe alleged use of Pegasus on the citizens of the country, was of graveconcern.C

25. The learned Solicitor General rebutted the arguments of thePetitioners and submitted that there was no reason to question thecredibility of any Committee that might be constituted by the Respondent-Union of India as only experts independent of any association with theRespondent-Union of India would be a part of the same. He furtherDstated that all technologies had the capability of either being used orabused, and it could not be said that the use of such a software was perse impermissible, particularly when a robust legal mechanism existed tocheck the use of the same. He finally reiterated that this Court shouldallow the Respondent-Union of India to constitute an Expert Committeewhich would be under its supervision.E26. We have considered the submissions of the learned seniorcounsel for the Petitioners, Petitioner-in-person, and the learned SolicitorGeneral for the Respondent-Union of India.

27. At the outset, certain nuances of the right to privacy in India-its facets and importance, need to be discussed. Historically, privacyFrights have been ‘property centric’ rather than people centric. Thisapproach was seen in both the United States of America as well as inEngland. In 1604, in the historical Semayne’s case, 77 ER 194 (KB) itwas famously held that “every man’s house is his castle”. This markedthe beginning of the development of the law protecting people againstGunlawful warrants and searches.

28. As William Pitt, the Earl of Chatham stated in March 1763[1]:“The poorest man may in his cottage bid defiance to all the forceof the Crown. It may be frail—its roof may shake—the wind 1 Lord Brougham, Historical Sketches of Statesmen who Flourished in the Time ofHGeorge III First Series, Vol. 1 (1845).

may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter!—all his force dares notcross the threshold of the ruined tenement!”

29. As long back as in 1890, Samuel Warren and Louis Brandeisobserved in their celebrated article ‘The Right to Privacy’[2]:

“Recent inventions and business methods call attention to the nextstep which must be taken for the protection of the person, and forsecuring to the individual what Judge Cooley calls the right “to belet alone.”…numerous mechanical devices threaten to make goodthe prediction that “what is whispered in the closet shall beproclaimed from the house-tops.”

30. However, unlike the ‘property centric’ origin of privacy rightsin England and under the Fourth Amendment in the Constitution of theUnited States of America, in India, privacy rights may be traced to the‘right to life’ enshrined under Article 21 of the Constitution. When thisCourt expounded on the meaning of “life” under Article 21, it did notrestrict the same in a pedantic manner. An expanded meaning has beengiven to the right to life in India, which accepts that “life” does not referto mere animal existence but encapsulates a certain assured quality.

31. It is in this context that we must contextualize the issues thatare being raised in this batch of petitions. We live in the era of informationrevolution, where the entire lives of individuals are stored in the cloud orin a digital dossier. We must recognize that while technology is a usefultool for improving the lives of the people, at the same time, it can also beused to breach that sacred private space of an individual.

32. Members of a civilized democratic society have a reasonableexpectation of privacy. Privacy is not the singular concern of journalistsor social activists. Every citizen of India ought to be protected againstviolations of privacy. It is this expectation which enables us to exerciseour choices, liberties, and freedom. This Court in K.S. Puttaswamy(Privacy-9J.) v. Union of India, (2017) 10 SCC 1, has recognizedthat the right to privacy is as sacrosanct as human existence and isinalienable to human dignity and autonomy. This Court held that:

“320. Privacy is a constitutionally protected right whichemerges primarily from the guarantee of life and personal 2 Samuel Warren and Louis Brandeis, The Right to Privacy, Harvard Law Review, Vol.

4 (5), 193 (Dec. 15, 1890).

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liberty in Article 21 of the Constitution. Elements of privacyalso arise in varying contexts from the other facets of freedomand dignity recognised and guaranteed by the fundamental rightscontained in Part III.

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325. Like other rights which form part of the fundamentalfreedoms protected by Part III, including the right to life andpersonal liberty under Article 21, privacy is not an absolute right.A law which encroaches upon privacy will have to withstandthe touchstone of permissible restrictions on fundamentalCrights. In the context of Article 21 an invasion of privacymust be justified on the basis of a law which stipulates aprocedure which is fair, just and reasonable. The law mustalso be valid with reference to the encroachment on lifeand personal liberty under Article 21. An invasion of life orpersonal liberty must meet the threefold requirement of (i)Dlegality, which postulates the existence of law; (ii) need,defined in terms of a legitimate State aim; and (iii)proportionality which ensures a rational nexus between theobjects and the means adopted to achieve them.”

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33. Although declared to be inalienable, the right to privacy ofcourse cannot be said to be an absolute, as the Indian Constitution doesnot provide for such a right without reasonable restrictions. As with allthe other fundamental rights, this Court therefore must recognize thatcertain limitations exist when it comes to the right to privacy as well.FHowever, any restrictions imposed must necessarily pass constitutionalscrutiny.

34. In K.S. Puttaswamy (Privacy-9J.) (supra), thisCourtconsidered the need to protect the privacy interests of individualswhile furthering legitimate State interests. This Court therefore directedGthe State to embark upon the exercise of balancing of competing interests.This Court observed as follows:

“310.While it intervenes to protect legitimate Stateinterests, the State must nevertheless put into place arobust regime that ensures the fulfilment of a threefoldHrequirement. These three requirements apply to all restraints on privacy (not just informational privacy). Theyemanate from the procedural and content-based mandateof Article 21. The first requirement that there must be a law inexistence to justify an encroachment on privacy is an expressrequirement of Article 21. For, no person can be deprived of hislife or personal liberty except in accordance with the procedureestablished by law. The existence of law is an essential requirement.Second, the requirement of a need, in terms of a legitimate Stateaim, ensures that the nature and content of the law which imposesthe restriction falls within the zone of reasonableness mandatedby Article 14, which is a guarantee against arbitrary State action.The pursuit of a legitimate State aim ensures that the law doesnot suffer from manifest arbitrariness. Legitimacy, as a postulate,involves a value judgment. Judicial review does not reappreciateor second guess the value judgment of the legislature but is fordeciding whether the aim which is sought to be pursued suffersfrom palpable or manifest arbitrariness. The third requirementensures that the means which are adopted by the legislatureare proportional to the object and needs sought to be fulfilledby the law. Proportionality is an essential facet of theguarantee against arbitrary State action because it ensuresthat the nature and quality of the encroachment on the rightis not disproportionate to the purpose of the law. Hence,the threefold requirement for a valid law arises out of themutual interdependence between the fundamentalguarantees against arbitrariness on the one hand and theprotection of life and personal liberty, on the other. Theright to privacy, which is an intrinsic part of the right to lifeand liberty, and the freedoms embodied in Part III is subjectto the same restraints which apply to those freedoms.”

35. The right to privacy is directly infringed when there issurveillance or spying done on an individual, either by the State or by anyexternal agency. Ellen Alderman and Caroline Kennedy, in ‘Right toPrivacy’,[3] foresaw this threat to privacy in 1995, while referring togovernmental eavesdropping in the United States of America, in thefollowing words:

3 Ellen Alderman and Caroline Kennedy, The Right to Privacy, 223 (1995).

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A“Perhaps the scariest threat to privacy comes in the area knownas “informational privacy”. Information about all of us is nowcollected not only by the old standbys, the IRS and FBI, but alsoby the MTB, MIB, NCOA, and NCIC, as well as credit bureaus,credit unions, and credit card companies. We now have cellularphones, which are different from cordless phones, which areBdifferent from what we used to think of as phones. We worryabout e-mail, voice mail, and junk mail. And something with theperky name Clipper Chip - developed specifically to allowgovernmental eavesdropping on coded electronic communications– is apparently the biggest threat of all.”C36. Of course, if done by the State, the same must be justified onconstitutional grounds. This Court is cognizant of the State’s interest toensure that life and liberty is preserved and must balance the same. Forinstance, in today’s world, information gathered by intelligence agenciesthrough surveillance is essential for the fight against violence and terror.DTo access this information, a need may arise to interfere with the right toprivacy of an individual, provided it is carried out only when it is absolutelynecessary for protecting national security/interest and is proportional.The considerations for usage of such alleged technology, ought to beevidence based. In a democratic country governed by the rule of law,indiscriminate spying on individuals cannot be allowed except withEsufficient statutory safeguards, by following the procedure establishedby law under the Constitution.

37. This trade-off between the right to privacy of an individualand the security interests of the State, has been recognized world overwith the renowned scholar Daniel Solove[4 ]commenting on the same asFfollows:

“The debate between privacy and security has been framedincorrectly, with the trade-off between these values understoodas an all-or-nothing proposition. But protecting privacy neednot be fatal to security measures; it merely demandsGoversight and regulation. We can’t progress in the debatebetween privacy and security because the debate itself isflawed.

4 Daniel J. Solove, Nothing to Hide: The False Tradeoff between Privacy and SecurityH(2011).

The law suffers from related problems. It seeks to balance privacyand security, but systematic problems plague the way the balancingtakes place….

Privacy often can be protected without undue cost to security. Ininstances when adequate compromises can’t be achieved, thetrade-off can be made in a manner that is fair to both sides. Wecan reach a better balance between privacy and security. Wemust. There is too much at stake to fail.”

38. Somewhat allied to the concerns of privacy, is the freedom ofthe press. Certain observations made by this Court in the case of IndianExpress Newspapers (Bombay) Private Limited v. Union ofIndia,(1985) 1 SCC 641 may be extracted:

“25. The freedom of press, as one of the members of theConstituent Assembly said, is one of the items around which thegreatest and the bitterest of constitutional struggles have beenwaged in all countries where liberal constitutions prevail. The saidfreedom is attained at considerable sacrifice and suffering andultimately it has come to be incorporated in the various writtenconstitutions…”

39. It is undeniable that surveillance and the knowledge that oneis under the threat of being spied on can affect the way an individualdecides to exercise his or her rights. Such a scenario might result in self-censorship. This is of particular concern when it relates to the freedomof the press, which is an important pillar of democracy. Such chillingeffect on the freedom of speech is an assault on the vital public-watchdogrole of the press, which may undermine the ability of the press to provideaccurate and reliable information. Recently, in the case of AnuradhaBhasin v. Union of India, (2020) 3 SCC 637, this Court highlightedthe importance of freedom of the press in a modern democracy in thefollowing words:

“159. In this context, one possible test of chilling effect iscomparative harm. In this framework, the Court is requiredto see whether the impugned restrictions, due to theirbroad-based nature, have had a restrictive effect onsimilarly placed individuals during the period. It is thecontention of the petitioner that she was not able to publish her AB

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Anewspaper from 6-8-2019 to 11-10-2019. However, no evidencewas put forth to establish that such other individuals were alsorestricted in publishing newspapers in the area. Without suchevidence having been placed on record, it would be impossible todistinguish a legitimate claim of chilling effect from a mere emotiveargument for a self-serving purpose. On the other hand, the learnedBSolicitor General has submitted that there were other newspaperswhich were running during the aforesaid time period. In view ofthese facts, and considering that the aforesaid petitioner has nowresumed publication, we do not deem it fit to indulge more in theissue than to state that responsible Governments are required toCrespect the freedom of the press at all times. Journalists are tobe accommodated in reporting and there is no justificationfor allowing a sword of Damocles to hang over the press”indefinitely.

D40. An important and necessary corollary of such a right is toensure the protection of sources of information. Protection of journalisticsources is one of the basic conditions for the freedom of the press.Without such protection, sources may be deterred from assisting thepress in informing the public on matters of public interest.

E41. Having regard to the importance of the protection of journalisticsources for press freedom in a democratic society and the potentialchilling effect that snooping techniques may have, this Court’s task inthe present matter, where certain grave allegations of infringement ofthe rights of the citizens of the country have been raised, assumes greatsignificance. In this light, this Court is compelled to take up the cause toFdetermine the truth and get to the bottom of the allegations made herein.

42. Initially, this Court was not satisfied with the Writ Petitionsthat were filed as the same were completely reliant only upon certainnewspaper reports. This Court has generally attempted to discourageWrit Petitions, particularly Public Interest Litigations, which are basedGentirely on newspaper reports without any additional steps taken by thePetitioner. In this respect, it may be relevant to quote the observations ofthis Court in the case of Rohit Pandey v. Union of India, (2005) 13SCC 702, which are as follows:

“1. …The only basis for the petitioner coming to this CourtHare two newspaper reportsdated 25-1-2004, and the other dated 12-2-2004. This petition was immediately filed on 16-2-2004 afterthe aforesaid second newspaper report appeared….

2. We expect that when such a petition is filed in publicinterest and particularly by a member of the legal profession,it would be filed with all seriousness and after doing thenecessary homework and enquiry.If the petitioner is so public-spirited at such a young age as is so professed, the least onewould expect is that an enquiry would be made from the authoritiesconcerned as to the nature of investigation which may be goingon before filing a petition that the investigation be conducted bythe Central Bureau of Investigation. Admittedly, no such measureswere taken by the petitioner. There is nothing in the petition as towhat, in fact, prompted the petitioner to approach this Court withintwo-three days of the second publication dated 12-2-2004, in thenewspaper Amar Ujala. Further, the State of Uttar Pradesh hadfiled its affidavit a year earlier i.e. on 7-10-2004, placing on recordthe steps taken against the accused persons, including thesubmission of the charge-sheet before the appropriate court.Despite one year having elapsed after the filing of the affidavit bythe Special Secretary to the Home Department of the Governmentof Uttar Pradesh, nothing seems to have been done by thepetitioner. The petitioner has not even controverted what is statedin the affidavit. Ordinarily, we would have dismissed such amisconceived petition with exemplary costs but considering thatthe petitioner is a young advocate, we feel that the ends of justicewould be met and the necessary message conveyed if a tokencost of rupees one thousand is imposed on the petitioner.”

43. While we understand that the allegations made in these petitionspertain to matters about which ordinary citizens would not have informationexcept for the investigating reporting done by news agencies, looking tothe quality of some of the petitions filed, we are constrained to observethat individuals should not file half-baked petitions merely on a fewnewspaper reports. Such an exercise, far from helping the cause espousedby the individual filing the petition, is often detrimental to the cause itself.This is because the Court will not have proper assistance in the matter,with the burden to even determine preliminary facts being left to theCourt. It is for this reason that trigger happy filing of such petitions in AB

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ACourts, and more particularly in this Court which is to be the finaladjudicatory body in the country, needs to be discouraged. This shouldnot be taken to mean that the news agencies are not trusted by theCourt, but to emphasize the role that each pillar of democracy occupiesin the polity. News agencies report facts and bring to light issues whichmight otherwise not be publicly known. These may then become theBbasis for further action taken by an active and concerned civil society,as well as for any subsequent filings made in Courts. But newspaperreports, in and of themselves, should not in the ordinary course be takento be ready-made pleadings that may be filed in Court.

44. That said, after we indicated our reservations to the PetitionersCregarding the lack of material, various other petitions have been filed inCourt, including by individuals who were purportedly victims of the allegedPegasus spyware attack. These subsequently filed petitions, as well asadditional documents filed by others, have brought on record certainmaterials that cannot be brushed aside, such as the reports of reputedDorganizations like Citizen Lab and affidavits of experts. Additionally, thesheer volume of cross-referenced and cross-verified reports from variousreputable news organizations across the world along with the reactionsof foreign governments and legal institutions also moved us to considerthat this is a case where the jurisdiction of the Court may be exercised.Of course, the learned Solicitor General suggested that many of theseEreports are motivated and self-serving. However, such an omnibus oralallegation is not sufficient to desist from interference.

45. It is for this reason that this Court issued notice to theRespondent-Union of India and sought information from them. We wouldFlike to re-emphasize what is already apparent from the record ofproceedings. This Court gave ample opportunity to the Respondent-Unionof India to clarify its stand regarding the allegations raised, and to provideinformation to assist the Court regarding the various actions taken by itover the past two years, since the first disclosed alleged Pegasus spywareattack. We had made it clear to the learned Solicitor General on manyGoccasions that we would not push the Respondent-Union of India toprovide any information that may affect the national security concernsof the country. However, despite the repeated assurances andopportunities given, ultimately the Respondent-Union of India has placedon record what they call a “limited affidavit”, which does not shed anylight on their stand or provide any clarity as to the facts of the matter atH

hand. If the Respondent-Union of India had made their stand clear itwould have been a different situation, and the burden on us would havebeen different.

46. Such a course of action taken by the Respondent-Union ofIndia, especially in proceedings of the present nature which touchesupon the fundamental rights of the citizens of the country, cannot beaccepted. As held by this Court in Ram Jethmalani v. Union of India,(2011) 8 SCC 1, the Respondent-Union of India should not take anadversarial position when the fundamental rights of citizens are at threat.This Court in that case observed as follows:

“75. In order that the right guaranteed by clause (1) of Article 32be meaningful, and particularly because such petitions seek theprotection of fundamental rights, it is imperative that in suchproceedings the petitioners are not denied the informationnecessary for them to properly articulate the case and be heard,especially where such information is in the possession of the State.To deny access to such information, without citing anyconstitutional principle or enumerated grounds of constitutionalprohibition, would be to thwart the right granted by clause (1) ofArticle 32.

76. Further, inasmuch as, by history and tradition of common law,judicial proceedings are substantively, though not necessarily fully,adversarial, both parties bear the responsibility of placingall the relevant information, analyses, and facts before thisCourt as completely as possible. In most situations, it isthe State which may have more comprehensive informationthat is relevant to the matters at hand in such proceedings...

77. It is necessary for us to note that the burden of asserting, andproving, by relevant evidence a claim in judicial proceedings wouldordinarily be placed upon the proponent of such a claim; however,the burden of protection of fundamental rights is primarilythe duty of the State. Consequently, unless constitutionalgrounds exist, the State may not act in a manner that hindersthis Court from rendering complete justice in suchproceedings. Withholding of information from the petitioners, orseeking to cast the relevant events and facts in a light favourableto the State in the context of the proceedings, even though AB

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Aultimately detrimental to the essential task of protectingfundamental rights, would be destructive to the guarantee in clause(1) of Article 32…

78. In the task of upholding of fundamental rights, the Statecannot be an adversary. The State has the duty, generally,Bto reveal all the facts and information in its possession tothe Court, and also provide the same to the petitioners.This is so, because the petitioners would also then be enabled tobring to light facts and the law that may be relevant for the Courtin rendering its decision. In proceedings such as those under Article32, both the petitioner and the State, have to necessarily be theCeyes and ears of the Court. Blinding the petitioner wouldsubstantially detract from the integrity of the process of judicialdecision-making in Article 32 proceedings, especially where theissue is of upholding of fundamental rights.”

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47. This free flow of information from the Petitioners and theState, in a writ proceeding before the Court, is an important step towardsGovernmental transparency and openness, which are celebrated valuesunder our Constitution, as recognized by this Court recently in theAnuradha Bhasin (supra) judgment.E

48. Of course, there may be circumstances where the State has aconstitutionally defensible reason for denying access to certain informationor divulging certain information as was recognized by this Court in theRam Jethmalani (supra) case, as extracted below:

F“80. Withholding of information from the petitioners by theState, thereby constraining their freedom of speech and expressionbefore this Court, may be premised only on the exceptionscarved out, in clause (2) of Article 19, “in the interests ofthe sovereignty and integrity of India, the security of theState, friendly relations with foreign States, public order,Gdecency or morality, or in relation to contempt of court,defamation or incitement to an offence” or by law thatdemarcate exceptions, provided that such a law comportswith the enumerated grounds in clause (2) of Article 19, orthat may be provided for elsewhere in the Constitution.”

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49. It is on the strength of the above exception carved out that theRespondent-Union of India has justified its non-submission of a detailedcounter affidavit, viz., by citing security concerns. It is a settled positionof law that in matters pertaining to national security, the scope of judicialreview is limited. However, this does not mean that the State gets a freepass every time the spectre of “national security” is raised. Nationalsecurity cannot be the bugbear that the judiciary shies away from, byvirtue of its mere mentioning. Although this Court should be circumspectin encroaching upon the domain of national security, no omnibus prohibitioncan be called for against judicial review.

50. Of course, the Respondent-Union of India may decline toprovide information when constitutional considerations exist, such as thosepertaining to the security of the State, or when there is a specific immunityunder a specific statute. However, it is incumbent on the State to notonly specifically plead such constitutional concern or statutory immunitybut they must also prove and justify the same in Court on affidavit. TheRespondent-Union of India must necessarily plead and prove the factswhich indicate that the information sought must be kept secret as theirdivulgence would affect national security concerns. They must justifythe stand that they take before a Court. The mere invocation of nationalsecurity by the State does not render the Court a mute spectator.

51. In the present matter, as we have indicated above, thePetitioners have placed on record certain material that prima facie meritsconsideration by this Court. There has been no specific denial of any ofthe 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. Insuch circumstances, we have no option but to accept the prima faciecase made out by the Petitioners to examine the allegations made.

52. Different forms of surveillance and data gathering byintelligence agencies to fight terrorism, crime and corruption in nationalinterest and/or for national security, are accepted norms all over theworld. The Petitioners do not contend that the State should not resort tosurveillance/collection of data in matters of national security. Thecomplaint of the Petitioners is about the misuse or likely misuse of spywarein violation of the right to privacy of citizens. The Respondent-Union ofIndia also does not contend that its agencies can resort to surveillance/collection of data relating to its citizens where national security and national AB

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Ainterest are not involved. The apprehension of the Respondent-Union ofIndia is that any inquiry in this behalf should not jeopardize national securityand the steps taken by it to protect national security. There is thus abroad consensus that unauthorized surveillance/accessing of stored datafrom the phones and other devices of citizens for reasons other thannation’s security would be illegal, objectionable and a matter of concern.B

53. The only question that remains then is what the appropriateremedy in this case would be. Mr. Shyam Divan, learned senior counselappearing on behalf of the Petitioner in Writ Petition (C) No. 849 of2021 sought an interim order from this Court directing the CabinetSecretary to put certain facts on an affidavit. On the other hand, most ofCthe other senior counsel appearing on behalf of the other Writ Petitionerssought an independent investigation or inquiry into the allegationspertaining to the use of Pegasus software either by constituting a SpecialInvestigation Team headed by a retired judge or by a Judges’ Committee.

54. We are of the opinion that in the circumstances of the presentDcase, when the Respondent-Union of India has already been givenmultiple opportunities to file an affidavit on record, and looking to theconduct of the Respondent-Union of India in not placing on record anyfacts through their reliance on the “national security” defense, no usefulpurpose would be served by issuing directions of the nature sought byEMr. Shyam Divan, apart from causing a further delay in proceedings.

55. Instead, we are inclined to pass an order appointing an ExpertCommittee whose functioning will be overseen by a retired Judge of theSupreme Court. Such a course of action has been adopted by this Courtin various other circumstances when the Court found it fit in the factsFand circumstances of the case to probe the truth or falsity of certainallegations, taking into account the public importance and the allegedscope and nature of the large-scale violation of the fundamental rightsof the citizens of the country [See Ram Jethmalani (supra); Extra-Judicial Execution Victim Families Association v. Union of India,(2013) 2 SCC 493; G.S. Mani v. Union of India, order datedG12.12.2019 in W.P. (Crl.) No. 348 of 2019].

56. The compelling circumstances that have weighed with us topass such an order are as follows:

i.Right to privacy and freedom of speech are alleged to beimpacted, which needs to be examined.H

ii.The entire citizenry is affected by such allegations due toAthe potential chilling effect.

iii.No clear stand taken by the Respondent-Union of Indiaregarding actions taken by it.

iv.Seriousness accorded to the allegations by foreign countriesand involvement of foreign parties.

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v.Possibility that some foreign authority, agency or privateentity is involved in placing citizens of this country undersurveillance.

vi.Allegations that the Union or State Governments are partyCto 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 technologyon citizens, which is the jurisdictional fact, is disputed andrequires further factual examination.

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57. It is for reason (vi) above that we decline the Respondent-Union of India’s plea to allow them to appoint an Expert Committee forthe purposes of investigating the allegations, as such a course of actionwould violate the settled judicial principle against bias, i.e., that ‘justicemust not only be done, but also be seen to be done’.

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58. At this juncture, it would be appropriate to state that in thisworld of conflicts, it was an extremely uphill task to find and selectexperts who are free from prejudices, are independent and competent.Rather than relying upon any Government agencies or any, we haveconstituted the Committee and shortlisted expert members based onbiodatas and information collected independently. Some of the candidatespolitely declined this assignment, while others had some conflict ofinterest. With our best intentions and efforts, we have shortlisted andchosen the most renowned experts available to be a part of theCommittee. Additionally, we have also left it to the discretion of thelearned overseeing judge to take assistance from any expert, if necessary,to ensure absolute transparency and efficiency, as directed in paragraph62(3).

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59. With the above observations, we constitute a TechnicalCommittee comprising of three members, including those who are expertsin cyber security, digital forensics, networks and hardware, whose H

Afunctioning will be overseen by Justice R.V. Raveendran, former Judge,Supreme Court of India. The learned overseeing Judge will be assistedin this task by:

i.Mr. Alok Joshi, former IPS officer (1976 batch) who hasimmense and diverse investigative experience and technicalBknowledge. He has worked as the Joint Director,Intelligence Bureau, the Secretary(R), Research andAnalysis Wing and Chairman, National Technical ResearchOrganisation.

ii.Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7C(International Organisation of Standardisation/ InternationalElectro-Technical Commission/Joint Technical Committee),a sub-committee which develops and facilitates standardswithin the field of software products and systems. Dr.Oberoi is also a part of the Advisory Board of Cyber SecurityEducation and Research Centre at Indraprastha InstituteDof Information Technology, Delhi. He is globally recognizedas a cyber security expert.

60. The three members Technical Committee [hereinafterreferred to as the “Committee”] shall comprise of:

Ei.Dr. Naveen Kumar Chaudhary, Professor (Cyber Securityand Digital Forensics) and Dean, National Forensic SciencesUniversity, Gandhinagar, Gujarat. Dr. Chaudhary has overtwo decades of experience as an academician, cybersecurity enabler and cyber security expert. He specializesin cyber security policy, network vulnerability assessmentFand penetration testing.

ii.Dr. Prabaharan P., Professor (School of Engineering), AmritaVishwa Vidyapeetham, Amritapuri, Kerala. He has twodecades of experience in computer science and securityareas. His areas of interest are malware detection, criticalGinfrastructural security, complex binary analysis, AI andmachine learning. He has many publications in reputedjournals.

iii.Dr. Ashwin Anil Gumaste, Institute Chair AssociateProfessor (Computer Science and Engineering), IndianHInstitute of Technology, Bombay, Maharashtra. He has been granted 20 US patents and has published over 150 papersand authored 3 books in his field. He has received severalNational awards including the Vikram Sarabhai ResearchAward (2012) and Shanti Swarup Bhatnagar Prize forScience and Technology (2018). He has also held theposition of Visiting Scientist at the Massachusetts Instituteof Technology, USA.

61. The terms of reference of the Committee are as follows:

A. To enquire, investigate and determine:

i.Whether the Pegasus suite of spyware was used on phonesor other devices of the citizens of India to access storeddata, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated herein?

ii.The details of the victims and/or persons affected by sucha spyware attack.

iii.What steps/actions have been taken by the Respondent-Union of India after reports were published in the year 2019about hacking of WhatsApp accounts of Indian citizens,using the Pegasus suite of spyware.

iv.Whether any Pegasus suite of spyware was acquired bythe Respondent-Union of India, or any State Government,or any central or state agency for use against the citizensof India?

v.If any governmental agency has used the Pegasus suite ofspyware on the citizens of this country, under what law,rule, guideline, protocol or lawful procedure was suchdeployment made?

vi.If any domestic entity/person has used the spyware on thecitizens of this country, then is such a use authorised?

vii.Any other matter or aspect which may be connected,ancillary or incidental to the above terms of reference, whichthe Committee may deem fit and proper to investigate.

B. To make recommendations:

i.Regarding enactment or amendment to existing law andprocedures surrounding surveillance and for securingimproved right to privacy.

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Aii.Regarding enhancing and improving the cyber security ofthe nation and its assets.

iii.To ensure prevention of invasion of citizens’ right to privacy,otherwise than in accordance with law, by State and/or non-State entities through such spywares.

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iv.Regarding the establishment of a mechanism for citizens toraise grievances on suspicion of illegal surveillance of theirdevices.

v.Regarding the setting up of a well-equipped independentpremier agency to investigate cyber security vulnerabilities,Cfor threat assessment relating to cyberattacks and toinvestigate instances of cyberattacks in the country.

vi.Regarding any ad-hoc arrangement that may be made bythis Court as an interim measure for the protection ofcitizen’s rights, pending filling up of lacunae by theParliament.D

vii.On any other ancillary matter that the Committee may deemfit and proper.

62. The Procedure of the Committee shall be as follows:

(1) The Committee constituted by this Order is authorised to - (a) devise its own procedure to effectively implement and answer the Terms of Reference; E

(b) hold such enquiry or investigation as it deems fit; and

(c) take statements of any person in connection with theenquiry and call for the records of any authority orindividual.F

(2) Justice R. V. Raveendran, former Judge, Supreme Courtof India will oversee the functioning of the Committee withrespect to the methodology to be adopted, procedure to befollowed, enquiry and investigation that is carried out andpreparation of the report.

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(3) The learned overseeing Judge is at liberty to take theassistance of any serving or retired officer(s), legal expert(s)or technical expert(s) in discharge of his functions.

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(4) We request the learned overseeing Judge to fix theAhonorarium of the members of the Committee in consultationwith them, which shall be paid by the Respondent-Union ofIndia immediately.

(5) The Respondent-Union of India and all the StateGovernments, as well as agencies/authorities under them,Bare directed to extend full facilities, including providingsupport with respect to infrastructure needs, manpower,finances, or any other matter as may be required by theCommittee or the overseeing former Judge to effectivelyand expeditiously carry out the task assigned to them byCthis Court.

(6) Mr. Virender Kumar Bansal, Officer on Special Duty/Registrar, Supreme Court of India, is directed to coordinatebetween the Committee, the learned overseeing Judge andthe Central/State Governments to facilitate communicationand ensure smooth functioning and expeditious responseto, and implementation of, requests made by the Committee,the learned overseeing Judge or those named in paragraph59 above, tasked to assist him.

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63. The Committee is requested to prepare the report after athorough inquiry and place it before this Court, expeditiously.

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64. List the matter after 8 weeks.

Devika Gujral

Directions issued.

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