Indiscriminate spying on individuals does not suit a democracy: Supreme Court

‘The use of technology for surveillance by the state must be evidence-based’

Indiscriminate spying on individuals by the state is not allowed in a democracy, the Supreme Court said on Wednesday. The use of technology for surveillance by the state must be evidence-based, the court said.

A Bench led by Chief Justice of India N.V. Ramana, in its order in the Pegasus snooping case, said surveillance to flush out terror activities is essential to protect life and liberty. A need may arise to encroach into individual privacy to access information vital to prevent violence and terror.

However, the state can violate a person’s privacy only if it is “absolutely necessary” to protect national security and interests. The necessity to trespass on individual privacy should be proportional.

“In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution,” the Supreme Court noted.

“It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship,” the CJI-led Bench observed in the Pegasus order.

The order was based on separate petitions filed by senior journalists N. Ram and Sashi Kumar; Rajya Sabha MP John Brittas; Supreme Court lawyer M.L. Sharma; and journalists like Paranjoy Guha Thakurta, S.N.M. Abdi, Prem Shankar Jha, Rupesh Kumar Singh and Ipsa Shataksi, who alleged that they were victims of Pegasus surveillance.

They claimed to have been subjected to “deeply intrusive surveillance”. They said a forensic examination done by Amnesty International on mobile phones had revealed traces of interference.

The petitions had alleged that questions and attempts to garner the truth from the government had reached a dead-end. The government has “deliberately avoided” public debate on the issue, providing “obfuscated answers” to straight questions about its alleged role in the snooping, they had argued.

The petitioners had sought a “complete overhaul” of the “surveillance architecture” by even challenging the constitutionality of Section 5 of the Indian Telegraph Act, 1885; Rule 419A of the Indian Telegraph Rules, 1951; Section 69 of the Information Technology Act, 2000; and Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption) of Information Rules, 2009.

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