While ordering the formation of an independent committee to investigate the Pegasus spyware allegations, the Supreme Court turned down the “national security” argument raised by the Union Government.
The Union Government had refused to make a clear statement before as to whether it has used the Pegasus spyware or not, by saying that it was related to “national security”.
The Solicitor General of India Tushar Mehta had submitted that the Government can’t be compelled to disclose whether it is using a particular software for surveillance, as it could alert terror groups. The SG had asserted this issue cannot be made a subject matter of affidavit or public discussion, and instead suggested that a committee constituted by the Union Government itself can examine the allegations of targeted surveillance of activists, journalists, politicians, etc., using the Pegasus spyware.
“They want the government of India to divulge which software is not used. No country would ever reveal which software they have used or not used! Then the persons who are being intercepted may take pre-emptive or corrective steps!”, the Solicitor General had argued.
During the hearing, the bench led by the Chief Justice of India had clarified that the Court was not interested in knowing national security aspects and wanted to ascertain only if civilians were targeted using the Pegasus spyware.
In the judgment pronounced today, the Court made a categorical statement that the State cannot get away from judicial scrutiny by merely raising the “national security” argument.
“…the Respondent-Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State. However, this does not mean that the State gets a free pass every time the specter of “national security” is raised”, the judges observed.
The judgment further stated :
“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 bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli observed in the judgment that the 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”, the Court stated.
Vague and omnibus denial by the Union of India is 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.