Right to privacy infringed in spying, be it by state or others, says Supreme Court on Pegasus

New Delhi: The Supreme Court on Friday said in a democratic country, governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, as spying done on an individual, either by the state or by any external agency, directly infringes the right to privacy.

A bench, headed by Chief Justice N.V. Ramana and comprising Justices Surya Kant and Hima Kohli, noted the petitioners complained about the likely misuse of spyware, which is a violation of the right to privacy of citizens. It further added that Centre's limited affidavit was insufficient for it to come to any conclusion regarding its stand with respect to the allegations made by the petitioners.

As Solicitor General Tushar Mehta indicated his apprehension that the disclosure of certain facts might affect the national security and defence of the nation, the bench emphasised: "The right to privacy is directly infringed when there is surveillance or spying done on an individual, either by the state or by any external agency."

The top court pointed out that members of a civilised democratic society have a reasonable expectation of privacy, which is not the singular concern of journalists or social activists.

"Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom," said the bench.

Constituting an independent experts committee, to be supervised by Justice R.V. Raveendran, a retired top court judge, the bench said: "Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined. The entire citizenry is affected by such allegations due to the potential chilling effect."

The bench also quoted renowned scholar Daniel Solove, "Privacy often can be protected without undue cost to security... We can reach a better balance between privacy and security. We must. There is too much at stake to fail."

However, the bench pointed out that to access information, a need may arise to interfere with the right to privacy of an individual, provided it is carried out only when it is necessary for protecting national security/interest and is proportional.

On petitioners' contention raising grave concern on violation of right to privacy by use of spyware, which is only sold to government agencies, the bench emphasised every invasion of privacy must pass the test of reasonableness and constitutional necessity.

"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."