The Nature of Judicial Power: Pegasus

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

­- George Orwell, 1984.

Orwellian concern.

September, 2018 – Citizen Lab released software capabilities of a ‘spyware suite’ called Pegasus, produced by NSO Group.

Historically, privacy rights have been ‘property centric’ rather than ‘people centric’. In 1604, in Semayne’s case, 77 ER 194 (KB) it was famously held, “every man’s house is his castle”; privacy rights, in India, may be traced to ‘right to life’ enshrined under Article 21. We live in an era of information revolution. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 recognized, ‘right to privacy’ is as sacrosanct as human existence.

A trade­-off between ‘right to privacy’ of an individual and ‘security interests’ of State has been recognized.

It is undeniable, surveillance and knowledge of threat of being spied on might result in self-censorship. This is of particular concern when it relates to ‘freedom of press’ – an important pillar of democracy.

Recently, Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 highlighted importance of ‘freedom of press’. An important and necessary corollary of such a right is to ensure protection of ‘sources of information’. Without such protection, sources may be deterred from assisting.

We are inclined to appoint an Expert Committee whose functioning will be overseen by a Retired Judge of Supreme Court [Hon’ble Justice R.V. Raveendran]. Expert Committee shall enquire, investigate and determine, whether Pegasus ‘spyware suite’ was acquired by Union of India and whether Pegasus ‘spyware suite’ was used to access stored data, eavesdrop on conversations and intercept information.

– Hon’ble Supreme Court of IndiaManohar Lal Sharma v. Union of India, [Writ Petition (Criminal) No. 314 of 2021] decided on 27.10.2021.