By Mr. Y.Srinivasa Rao, M.A (English Lit.)., B.Ed., LL.M., Research Scholar in Law of Torts, Principal Assistant Sessions Judge, Tirupati.
We live in the era of information revolution, where the entire lives of individuals are stored in the cloud or in a digital dossier. In this recent globalization, some spywares are alleged to have been used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Using criminal spyware is a violation of Provisions of Indian Constituion, especially it is a blow to the freedom of speech. ‘Pegasus’ is a spyware. Initially, Pegasus was of capable of tracking locations, passwords and calls, reading text messages. This present Pegasus software is capable of exploit IOS and andorid softwares. ‘Pegasus’ that was being produced by an Israeli Technology firm, viz., the NSO Group. The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively government intelligence and law enforcement agencies” as per its own website.
Now, as is known from the recent report of 2021 Project Pegagus Revelations, even IOS 14.6 version can be exploited by this spyware. ‘Pegasu’ is now burning topic. In the entire world, it is the first ever inquiry ordered by any court with such wide-ranging terms into spying by Pegasus issue. The Bench of the Hon’ble Supreme Court of India , led by the Chief Justice of India, N.V.Ramana, recently, on 27-10-2021, constituted a htree-member expert committee to conduct an invenstigation and it will now be overseen by a senior most retired judge of the Supreme Court of India. Manohar Lal Sharma Vs. UoI, Writ Petition (Crl.) No. 314 of 2021,2021 SCC OnLine SC 985 . The Suprme Court considers the importance of protection of public faith in the constituional system. The right to privacy is as sacrosant as human existence and is inalienable to human dignity and autonomy. In R. Raja Gopal Vs. State of TamilNaud, AIR 1995 SC 264, the Apex Court held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing, education, etc., because the right to privacy is implicit in the right to life and liberty guaranteed under article 21 of the Constitution. The Apex Court has never cowered from protecting all from the abuses of fundamental rights. For instance, we all know the landmark ruling of Kesavananda Bharati v. State of Kerala, (Opinion of Justice Khanna), AIR 1973 SC 1461.
In the month of May,2019, WhatsApp Inc. identified a vulnerability in its software that enabled Pegasus spyware to infiltrate the devices of WhatsApp’s users. It was also acknowledged by the then Hon’ble Minister of Law and Electronics and Information Technology in a statement made in the Parliament on 20th November 2019 that the devices of certain Indians were also affected.
Right to privacy:—
It is considered by the Supreme Court that certain nuances of the right to privacy in India-its facets and importance, need to be discussed. Referring to Semayne’s case, 77 ER 194 (KB), it was observed that historically, privacy rights have been ‘property centric’ rather than people centric. It was further observed that “every man’s house is his castle”. In India, privacy rights can be traced to the ‘right to life’ enshrined under Article 21 of the Constitution. When the Apex Court expounded on the meaning of “life” under Article 21, it did not restrict the same in a pedantic manner. An expanded meaning has been given to the right to life in India, which accepts that “life” does not refer to mere animal existence but encapsulates a certain assured quality. As was held in in K.S. Puttaswamy (Privacy-9J.)v. Union of India, (2017) 10 SCC 1, the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy. As was held in Ram Jethmalani v. Union of India, (2011) 8 SCC 1, Union of India should not take an adversarial position when the fundamental rights of citizens are at threat.
The Supreme Court held that an invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”
There may be circumstances where the State has a constitutionally defensible reason for denying access to certain information or divulging certain information as was recognized by the Apex Court in the Ram Jethmalani(supra) case, as extracted below:
“80. Withholding of information from the petitioners by the State, thereby constraining their freedom of speech and expression before this Court, may be premised only on the exceptions carved out, in clause (2) of Article 19, “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence” or by law that demarcate exceptions, provided that such a law comports with the enumerated grounds in clause (2) of Article 19, or that may be provided for elsewhere in the Constitution.” See.
Information about all of us is now collected not only by the old standbys, the IRS and FBI, but also by the MTB, MIB, NCOA, and NCIC, as well as credit bureaus, credit unions, and credit card companies. Therefore, the Apex Court recently observed as follows: “We worry about e-mail, voice mail, and junk mail. And something with the perky name Clipper Chip – developed specifically to allow governmental eavesdropping on coded electronic communications – is apparently the biggest threat of all.”
Indian Judiciary highlighted the importance of freedom of the press in a modern democracy in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637. See also. Indian Express Newspapers (Bombay) Private Limited v. Union of India, (1985) 1 SCC 641; Extra-Judicial Execution Victim Families Association v. Union of India, (2013) 2 SCC 493; G.S. Mani v. Union of India, order dated 12.12.2019 in W.P. (Crl.) No. 348 of 2019].
Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Of course, different forms of surveillance and data gathering by intelligence agencies to fight terrorism, crime and corruption in national interest and/or for national security, are accepted norms all over the world. The Supreme Court held that unauthorized surveillance/accessing of stored data from the phones and other devices of citizens for reasons other than nation’s security would be illegal, objectionable and a matter of concern. We all hope that the best results will come for more protection of the fundamental rights of citizens in India, especially right to privacy, as the Apex Court observed that “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. This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the vital public-watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information.” And so, the Hon’ble Supreme Court of India now constituted a Technical Committee comprising of three members, including those who are experts in cyber security, digital forensics, networks and hardware, whose functioning will be overseen by His Lordship Justice R.V. Raveendran, former Judge, Supreme Court of India.