The State Won’t Get A Free Pass Just Because “National Security” Is Mentioned: Supreme Court In Pegasus Case

The Supreme Court rejected the Union Government’s national security justification while ordering the formation of an independent commission to investigate the Pegasus spyware claims.

The Union Government has previously declined to say whether or not it had deployed the Pegasus malware, claiming that it was related to national security.

Tushar Mehta, India’s Solicitor General, had argued that the government cannot be forced to reveal if it is employing certain monitoring technologies since doing so could alert terrorist groups. The SG had stated that this issue could not be made the subject of an affidavit or public debate, and instead suggested that the allegations of targeted surveillance of activists, journalists, politicians, and others using the Pegasus spyware be investigated by a committee appointed by the Union Government.

“They want the Indian government to reveal which software isn’t used. No country would ever admit to using or not using such software! The intercepted persons can then take preventative or corrective action! “, argued the Solicitor General.

During the hearing, the bench lead by India’s Chief Justice stated that the Court was only interested in understanding if civilians were targeted by the Pegasus spyware and not about national security issues.

The ruling went on to say:

“Although the Court should exercise caution when entering the realm of national security, no blanket limitation against judicial review can be justified “..

In the verdict, the bench of CJI NV Ramana, Justice Surya Kant, and Justice Hima Kohli stated that the Union of India must plead and establish facts indicating that the information sought must be kept secret because its disclosure would jeopardise national security considerations. They must defend their position in front of a judge.

The Union of India’s vague and comprehensive denial is insufficient.

The Court noted that the Petitioners had placed several materials on the record that, on its face, merited the Court’s consideration.

“The “short affidavit” presented by the Respondent-Union of India simply contains an omnibus and ambiguous denial, which is insufficient “, the Court stated in its decision.

“In such circumstances, we have no choice but to accept the Petitioners’ prima facie case and investigate the claims,” the Court continued.

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