Civil/Criminal Jurisdiction Writ Petition No. 314 OF 2021
Date of Judgement:
27 October 2021
Chief Justice N.V. Ramana
Justice H. Kohli
Justice S. Kant
Petitioner: Manohar Lal Sharma
Respondent:Union of India
An appeal was filed before the Court to examine the use and alleged abuse of the Pegasus technology. The court aimed to analyze whether the fundamental rights of the citizens of India were violated and if in the given circumstances, the State had the authority to limit the rights of the individual in order to protect and ensure natural security.
Article 21 of the Indian Constitution:The Right to Protection of Life and personal liberty.
- In September 2018, Citizen Lab, a laboratory based out of the University of Toronto, Canada, released a report detailing the software capabilities of spyware called Pegasus that was being produced by an Israeli Technology firm.
- The spyware can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software.
- Allegedly, once the software infiltrates an individual’s device, it 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 the camera and sound recording capabilities of the device. The entire control over the device is handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.
- The NSO Group claims to supposedly sell this extremely powerful software only to certain undisclosed governments.
- The global messaging giant WhatsApp Inc. identified a vulnerability in its software that enabled Pegasus spyware to infiltrate the devices of WhatsApp’s users. This news was followed by a disclosure that the devices of certain Indians were also affected, which fact was acknowledged by the then Hon’ble Minister of Law and Electronics and Information Technology.
- The investigative effort of nearly 17 journalistic organizations from around the world indicated the alleged use of the Pegasus Software on several private individuals. It was based on a list of some 50,000 leaked numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus software. In the initial investigation, it was discovered that nearly 300 of these numbers belonged to Indians.
- Whether the foreign governments or agencies of the respondent are using the said software on citizens of the country without following lawful procedure.
- Whether the fundamental right given under Article 21 of the Indian Constitution are being violated and whether the government has the right to limit this right in the given circumstances in order to maintain national security.
- Union of India had justified its non-submission of a detailed counter affidavit by citing security concerns. In matters pertaining to national security, the scope of judicial review is limited, however, the court had said that this does not give the state a free pass every time the spectre of national authority is raised.
- The respondent had filed a limited affidavit, which was not sufficient in this case. In such circumstances, the court had no option but to prima facie accept the case made out by the petitioners.
- The opinion of the court was that no useful purpose would have been served by issuing directions of the nature sought by the petitioners’ lawyers.
- The court had passed an order to appoint an expert committee whose functioning will be overseen by a retired judge of the Supreme Court.
- Due to the allegations that the union or state governments were party to the deprivation of the citizens’ rights, the respondents’ plea to allow them to appoint an expert committee for the purpose of investigating the allegations had been denied.
- The court had made an effort to shortlist and chose renowned experts available to be a part of the committee. It was up to the discretion of the judge to take assistance from any expert of necessary, to ensure absolute efficiency.
- The matter was to be reviewed in 8 weeks.
The court had appointed an expert committee with minimum bias, which will assist the retired judge in his investigation of the spyware, Pegasus.
Technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach that sacred private space of an individual.
The courts have a responsibility to balance national security with upholding the rights of the individuals of the country, nevertheless, national security cannot be used as a bugbear that the court shies away from.
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