National security not always a 'free pass' against judiciary, says SC on Pegasus

New Delhi, Oct 27:  The Supreme Court on Wednesday made it crystal clear that the Centre's argument of national security, in context of whether it used the Pegasus spyware, cannot be used as a "free pass" whenever a matter is taken up for judicial review.

Mere invocation of national security by the state does not render the court a mute spectator, it stressed.

A bench headed by Chief Justice N.V. Ramana said it is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, the bench added that this does not mean that the state gets a free pass every time the spectre of "national security" is raised.

"National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review," it said.

The top court had sought the Centre's response on the petitioners' contention as to whether it used Pegasus on its citizens.

The Centre had submitted a limited affidavit in the matter and justified its non­submission of a detailed counter affidavit, by citing security concerns.

Solicitor General Tushar Mehta had submitted that such information could not be made a matter of public debate as the same could be used by terror groups to hamper national security.

The bench emphasised that it had already made it clear to the Centre that it will not push to get information which may affect national security concerns, yet the government placed on record a limited affidavit, which did not shed any light on its stand or provide any clarity as to the facts of the matter at hand.

"If the respondent, the ­Union of India had made their stand clear, it would have been a different situation, and the burden on us would have been different," it noted.

The top court pointed out that the Centre may decline to provide information when constitutional considerations exist, such as those pertaining to security of the state, or when there is a specific immunity under a specific statute.

It added, however, it is incumbent on the state to not only specifically plead such constitutional concern or statutory immunity, but they must also prove and justify the same in court in an affidavit.

"The respondent, Union of India, must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns," said the bench, adding in such circumstances, it has no option but to accept the prima facie case made out by the petitioners to examine the allegations made.

The top court also said that snooping on journalists or instilling a fear that media is being spied on, creates a "chilling effect" on journalistic freedom.

"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," it said.

The top court, which appointed a three-member technical expert committee to probe Pegasus snooping, said: "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."