TITLE OF THE CASE:Manohar Lal Sharma vs. Union of India (UOI) and Ors.(27.10.2021 – SC)MANU/SC/0989/2021: 2021 INSC 682

This Case Analysis Is Written By Ayush Kumar, 4 Yr B.A.L.L.B. University Of Lucknow, Lucknow, During an Internship At Ledroit India.

COURT:
Supreme Court of India

DATE OF JUDGMENT:

27 October 2021 March
PARTIES INVOLVED:

• Petitioner/Appellant: Manohar Lal Sharma
• Respondent/Defendant: Union of India (UOI) and Ors
  

BENCH (JUDGES):

List of judges who delivered the judgment-
1. N.V. Ramana, C.J.I.,
2. Surya Kant J and
3. Hima Kohli, J

AREA  OF  LAW  INVOLVED:

 Constitutional Law

CATEGORY OF CASE:
Letter, Petition, and PIL Matter– Criminal Petition and Writ Petition Filed as PIL Concerning Criminal Investigations/Prosecution.

INTRODUCTION-

The key issue in the case of Manohar Lal Sharma vs. Union of India and others was the alleged use of Pegasus spyware by the government to surveil citizens, raising concerns about privacy violations. The Supreme Court of India addressed the lack of a clear response from the Union of India regarding these allegations. The Court emphasized the importance of privacy and freedom of speech, and the potential chilling effect of surveillance. It appointed a Technical Committee, overseen by Justice R.V. Raveendran, to investigate the use of Pegasus spyware and recommend measures to protect privacy rights. The matter was scheduled for further review after eight weeks.

FACTS OF THE CASE:

Serious constitutional and legal concerns about the alleged illegal monitoring of Indian people using Pegasus spyware, created by the Israeli company NSO Group, are raised by a number of writ petitions filed before the Supreme Court of India in the current case.

What led to the dispute?
1. A study conducted in September 2018 by the University of Toronto-based research team Citizen Lab revealed the existence of Pegasus, a potent spyware program that can covertly infiltrate mobile devices and grant complete access to stored data, messages, calls, cameras, and microphones. India was among the at least 45 countries that reportedly used Pegasus.

2. WhatsApp Inc. admitted a security incident in May 2019 in which Pegasus was purportedly used to infect users’ devices and take advantage of a WhatsApp vulnerability.

3. More than 50,000 phone numbers may be the subject of Pegasus monitoring, according to a collaborative study published in July 2021 by a group of 17 media outlets, including one in India. There were apparently some 300 Indians on this list, including politicians, attorneys, activists, journalists, and even court officials.

4. Following forensic examination of at least ten Indian devices by Citizen Lab and Amnesty International, the Pegasus infection was purportedly verified.

Allegations

• Pegasus Reports by Citizen Lab and Amnesty International.
• WhatsApp Security Notification about zero-click vulnerability
• List of alleged surveillance targets, including verified Indian phone numbers.
• Statements by Union Ministers in Parliament denying unauthorized surveillance.
• Petitions from alleged victims (journalists, activists, lawyers) and public interest litigants demanding a judicial probe.
• Limited affidavit filed by the Government, refusing to confirm or deny Pegasus use due to “national security” concerns.

ISSUES  INVOLVED:

The Supreme Court was called upon to determine several key constitutional and legal issues arising from allegations of unauthorized surveillance of Indian citizens using the Pegasus spyware. The following were the primary issues framed by the Court:

1. Whether the alleged use of Pegasus spyware on Indian citizens’ mobile devices constitutes a violation of their fundamental rights under Articles 21 and 19(1)(a) of the Constitution, particularly the right to privacy and freedom of speech and expression?
2. Whether the Union of India or any of its agencies were involved in procuring or deploying the Pegasus software on Indian citizens without following the ‘procedure established by law’?
3. Whether the State is obligated to disclose surveillance-related information when such surveillance involves grave allegations of fundamental rights violations, even if ‘national security’ is claimed as a defence?
4. Whether the limited affidavit filed by the Union of India was sufficient to discharge its burden of transparency and accountability in light of the serious privacy concerns raised by the petitioners?
5. Whether a court-appointed independent expert committee is necessary to examine the factual allegations, given the Government’s failure to clarify or deny the use of Pegasus through a comprehensive affidavit?
6. Whether the formation of such a committee under judicial supervision violates or undermines the Government’s privilege or right to protect sensitive national security information?
7. Whether any mechanism exists in Indian law to prevent or monitor potential misuse of surveillance technology like Pegasus and whether such mechanisms are constitutionally adequate ?

ARGUMENTS:

 Arguments by the Petitioners:

1. Violation of Fundamental Rights:
   The petitioners contended that the alleged use of Pegasus spyware violated their fundamental rights under Article 21 (Right to Privacy) and Article 19(1)(a) (Freedom of Speech and Expression) of the Constitution. Surveillance without due process was termed unconstitutional.
2. Demand for Judicial Oversight:
   Senior counsels, including Kapil Sibal and Shyam Divan, strongly opposed the idea of the government forming its own inquiry committee. They argued that an independent committee supervised by the Supreme Court was necessary to maintain public confidence and impartiality.
3. Lack of Government Transparency:
   The limited affidavit filed by the Union of India was criticized for not clearly denying the allegations. It failed to clarify whether the government had procured or used Pegasus. The petitioners emphasized that no specific denial amounts to implied admission.
4. Threat to Democracy and Journalism:
   Surveillance of journalists, human rights defenders, and opposition leaders was said to have a chilling effect on free speech. It undermines the role of the press as a public watchdog and endangers democratic accountability.
5. International Credibility of Evidence:
   The petitioners cited credible international reports by Citizen Lab, Amnesty International, and media consortiums, which confirmed Pegasus activity on Indian phones. They claimed this was more than sufficient prima facie evidence to justify an investigation.
6. Pegasus Is Not Ordinary Malware:
   Petitioners, including some alleged victims, argued that Pegasus could plant evidence, monitor live calls, access microphones and cameras, and was unlike conventional spyware. It was exclusively sold to governments, raising the concern that a state agency may have used it unlawfully.

 Arguments by the Respondent (Union of India):

1. Denial of Allegations:
   Through a limited affidavit, the Union of India denied all allegations made by the petitioners and stated that the petitions were based on “conjectures, surmises, and unverified media reports.”
2. National Security Exception:
   The Solicitor General argued that disclosure of details related to surveillance or software use would compromise national security. He insisted that certain facts could not be placed on record or made public due to sensitive implications.
3. Robust Legal Framework Exists:
   The government cited the Indian Telegraph Act, 1885 and the Information Technology Act, 2000, asserting that any surveillance conducted was under these laws and subject to procedural safeguards.
4. Offer to Form Expert Committee:
   The Centre expressed willingness to form an Expert Committee to examine the allegations, stating that it would be composed of independent technical professionals and report back to the Court.
5. Media Reports Cannot Be Basis for Writ Jurisdiction:
   The government questioned the maintainability of the petitions, arguing that writs based purely on media coverage lacked evidentiary merit and should not form the basis of a judicial probe.
6. Judicial Review Limited in Security Matters:
   The State emphasized that matters involving national security should receive limited judicial interference and that courts should exercise restraint in reviewing intelligence-related issues.

JUDGMENT / DECISION:

 Final Decision:

The Supreme Court held that the allegations regarding unauthorized surveillance using Pegasus spyware raised serious concerns of constitutional importance, particularly the violation of fundamental rights under Articles 21 and 19(1)(a) of the Constitution (Right to Privacy and Freedom of Speech).

In view of:

• the Union Government’s failure to file a clear and comprehensive affidavit,
• the national importance of the issues involved, and
• the potential chilling effect on free speech and press freedom,

the Court constituted an independent Expert Committee under the supervision of Justice R.V. Raveendran (Retd.), a former judge of the Supreme Court, to conduct a thorough inquiry into the Pegasus spyware controversy.

Legal Reasoning:

1. Violation of Fundamental Rights:

The Court reaffirmed that privacy is a constitutionally protected right under Article 21 (as established in K.S. Puttaswamy v. Union of India), and that its violation must meet a threefold test: legality, necessity, and proportionality.

2. Chilling Effect on Press and Free Speech:

The Court noted the serious chilling effect such surveillance can have on journalists, civil society, and dissenters. This was seen as an infringement not only of privacy but also of freedom of speech and expression under Article 19(1)(a).

3. State’s Ambiguity and Non-Cooperation:

The Government’s refusal to clearly admit or deny the use of Pegasus and its reliance on a “limited affidavit” citing national security concerns was held insufficient and vague. The Court held that while national security is a valid concern, it cannot be used as a shield to avoid judicial review, especially when fundamental rights are at stake.

4. Need for Independent Probe:

The Court emphasized the need for an independent and credible investigation and ruled that the Union of India could not be allowed to appoint its own committee, due to the principle that “justice must not only be done but must also be seen to be done.”

 Reliefs Granted:

• A Technical Expert Committee of three cyber and forensic experts was constituted.
• The Committee’s work was to be overseen by Justice R.V. Raveendran, with assistance from two expert advisors.
• The Committee was given a clear set of terms of reference, including determining:
  • Whether Pegasus spyware was used against Indian citizens.
  • Who were affected or targeted.
  • Whether such surveillance was legally sanctioned.
  • Recommendations for stronger legal frameworks to protect citizens’ privacy.
• The Committee was directed to submit a report within 8 weeks (from the date of order) to the Supreme Court.

REASONING OF THE COURT:

1. Right to Privacy is a Fundamental Right (Article 21)

The Court reaffirmed its landmark decision in K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1], where the right to privacy was recognized as intrinsic to life and personal liberty under Article 21. The Court emphasized that:

• The right to privacy is not absolute but any invasion must pass the three-fold test:
  • Legality (existence of law),
  • Necessity (legitimate state interest),
  • Proportionality (least restrictive means).

Surveillance or intrusion without these checks violates constitutional safeguards.

 2. State Surveillance Must Be Lawful and Justified

The Court acknowledged that some level of surveillance may be necessary for national security and public order, but stressed that such power cannot be unregulated or unanswerable to judicial review. Mere invocation of “national security” cannot be used as a blanket excuse to avoid scrutiny, especially when fundamental rights are at stake.

 3. Government’s Non-Disclosure and Vague Affidavit

The Union of India failed to file a detailed affidavit denying the use of Pegasus or explaining its position. Instead, it filed a “limited affidavit” and repeatedly cited national security. The Court held that:

• A vague denial is not sufficient in a matter concerning serious constitutional violations.
• The burden of proof and disclosure is heavier on the State when fundamental rights are potentially violated.

Citing Ram Jethmalani v. Union of India [(2011) 8 SCC 1], the Court said the State must not act as an adversary in proceedings where constitutional rights are in question.

4. Role of Judiciary in Ensuring Accountability

Quoting Kesavananda Bharati v. State of Kerala and other constitutional decisions, the Court reiterated its duty to:

“Uphold the Constitution and the laws without fear or favour… and remain independent of political controversy.”

The Court emphasized that while respecting the State’s national security concerns, it cannot become a passive observer when allegations involve violation of citizens’ rights.

🔹 5. Chilling Effect on Free Speech and Press

Referring to Anuradha Bhasin v. Union of India (2020) 3 SCC 637 and Indian Express Newspapers v. Union of India (1985) 1 SCC 641, the Court highlighted:

• Surveillance deters free expression and causes self-censorship.
• This especially affects journalists and civil society actors, whose role in democracy is vital.

🔹 6. Independent Committee Needed to Ensure Justice

The Court rejected the Centre’s proposal to form its own committee, citing the legal principle that:

“Justice must not only be done, but must also be seen to be done.”

To ensure transparency and independence, the Court invoked precedents like:

• Ram Jethmalani v. Union of India
• Extra Judicial Execution Victim Families Assn. v. Union of India (2013) 2 SCC 493

Thus, a court-appointed independent technical committee was necessary to examine:

• Whether Pegasus spyware was used.
• Who was targeted.
• Whether such use was lawful.

🔹 7. Balance Between Privacy and Security

The Court cited legal scholars (like Daniel Solove) to underscore that privacy and security are not mutually exclusive. Oversight and judicial accountability can protect both.

 CONCLUSION / CRITICAL ANALYSIS 

The Supreme Court’s judgment in the Pegasus surveillance case is a landmark affirmation of constitutional values, particularly the right to privacy, freedom of speech, and judicial accountability. The Court rightly recognized that in a democratic society, surveillance cannot be unchecked, especially when fundamental rights are at risk. The refusal of the Union Government to provide a clear affidavit, citing national security without adequate justification, was appropriately viewed as insufficient and evasive.

By appointing an independent expert committee under judicial supervision, the Court avoided the risk of executive bias and reinforced the principle that “justice must not only be done but also be seen to be done.” The decision also set a precedent that national security claims cannot serve as a blanket excuse to escape judicial scrutiny.

However, the delay in receiving a comprehensive final report and the lack of concrete follow-up mechanisms has raised concerns about enforcement and accountability. While the legal reasoning is sound, greater urgency in implementing recommendations could have strengthened public trust.

Overall, the judgment reflects a balanced, rights-conscious approach and offers a progressive template for evaluating state surveillance in the digital era.