JUDGMENT

We have considered the submissions of the learned senior counsel for the Petitioners,
Petitioner−in−person, and the learned Solicitor General for the Respondent−Union of
India.
In India, privacy rights are rooted in the right to life under Article 21 of the Constitution,
which encompasses a broader understanding of life beyond mere existence.
We live in the era of information revolution, where the entire lives of individuals are stored
in the cloud or in a digital dossier. We must recognize that while technology is a useful tool
for improving the lives of the people, at the same time, it can also be used to breach that
sacred private space of an individual. Samuel Warren and Louis Brandeis, The Right to
Privacy, HARVARD LAW REVIEW, Vol. 4 (5), 193 (Dec. 15, 1890).
Members of a civilized democratic society have a reasonable expectation of privacy.
Privacy 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. This Court in K.S. Puttaswamy (Privacy−9J.)
v. Union of India, (2017) 10 SCC 1, has recognized that the right to privacy is as sacrosanct
as human existence and is inalienable to human dignity and autonomy. This Court held
that:
“320. Privacy is a constitutionally protected right which emerges primarily from the
guarantee of life and personal liberty in Article 21 of the Constitution. Elements of
privacy also arise in varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained in Part III.
325. Like other rights which form part of the fundamental freedoms protected by
Part III, including the right to life and personal liberty under Article 21, privacy is
not an absolute right. A law which encroaches upon privacy will have to withstand
the touchstone of permissible restrictions on fundamental rights. In the context of
Article 21 an invasion of privacy must be justified on the basis of a law which
stipulates a procedure which is fair, just and reasonable. The law must also be valid
with reference to the encroachment on life and personal liberty under Article 21. 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.”
Although declared to be inalienable, the right to privacy of course cannot be said to be an
absolute, as the Indian Constitution does not provide for such a right without reasonable
restrictions. As with all the other fundamental rights, this Court therefore must recognize
that certain limitations exist when it comes to the right to privacy as well. However, any
restrictions imposed must necessarily pass constitutional scrutiny.
In K.S. Puttaswamy (Privacy 9-J) (supra), this Court considered the need to protect the
privacy interests of individuals while furthering legitimate State interests. This Court
therefore directed the State to embark upon the exercise of balancing of competing
interests. This Court observed as follows:
“310.While it intervenes to protect legitimate State interests, the State must
nevertheless put into place a robust regime that ensures the fulfilment of a threefold
requirement. These three requirements apply to all restraints on privacy (not just
informational privacy). They emanate from the procedural and content based
mandate of Article 21.
The first requirement that there must be a law in existence to justify an encroachment on
privacy is an express requirement of Article 21. For, no person can be deprived of his life or
personal liberty except in accordance with the procedure established by law. The existence
of law is an essential requirement.
Second, the requirement of a need, in terms of a legitimate State aim, ensures that the
nature and content of the law which imposes the restriction falls within the zone of
reasonableness mandated by Article 14, which is a guarantee against arbitrary State action.
The pursuit of a legitimate State aim ensures that the law does not suffer from manifest
arbitrariness. Legitimacy, as a postulate, involves a value judgment. Judicial review does
not reappreciate or second guess the value judgment of the legislature but is for deciding
whether the aim which is sought to be pursued suffers from palpable or manifest
arbitrariness.
The third requirement ensures that the means which are adopted by the legislature are
proportional to the object and needs sought to be fulfilled by the law. Proportionality is an
essential facet of the guarantee against arbitrary State action because it ensures that the
nature and quality of the encroachment on the right is not disproportionate to the purpose
of the law. Hence, the threefold requirement for a valid law arises out of the mutual
interdependence between the fundamental guarantees against arbitrariness on the one
hand and the protection of life and personal liberty, on the other. The right to privacy,
which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part
III is subject to the same restraints which apply to those freedoms.”

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. Ellen Alderman and Caroline
Kennedy, in ‘Right to Privacy’, 3 foresaw this threat to privacy in 1995, while referring to
governmental eavesdropping in the United States of America, in the following words:
“Perhaps the scariest threat to privacy comes in the area known as “informational
privacy”. 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. We now have cellular phones,
which are different from cordless phones, which are different from what we used to
think of as phones. 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.”
Of course, if done by the State, the same must be justified on constitutional grounds. This
Court is cognizant of the State’s interest to ensure that life and liberty is preserved and
must balance the same. For instance, in today’s world, information gathered by intelligence
agencies through surveillance is essential for the fight against violence and terror. To access
this Ellen Alderman and Caroline Kennedy, THE RIGHT TO PRIVACY, 223 (1995).
Information, a need may arise to interfere with the right to privacy of an individual,
provided it is carried out only when it is absolutely necessary for protecting national
security/interest and is proportional. The considerations for usage of such alleged
technology, ought to be evidence based. 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.

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.
Recently, in the case of Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, this Court
highlighted the importance of freedom of the press in a modern democracy in the following
words:

“159. In this context, one possible test of chilling effect is comparative harm. In this
framework, the Court is required to see whether the impugned restrictions, due to
their broad−based nature, have had a restrictive effect on similarly placed
individuals during the period. It is the contention of the petitioner that she was not
able to publish her newspaper from 6−8−2019 to 11−10−2019. However, no evidence
was put forth to establish that such other individuals were also restricted in
publishing newspapers in the area. Without such evidence having been placed on
record, it would be impossible to distinguish a legitimate claim of chilling effect
from a mere emotive argument for a self−serving purpose. On the other hand, the
learned Solicitor General has submitted that there were other newspapers which
were running during the aforesaid time period. In view of these facts, and
considering that the aforesaid petitioner has now resumed publication, we do not
 deem it fit to indulge more in the issue than to state that responsible Governments
are required to respect the freedom of the press at all times. Journalists are to be
accommodated in reporting and there is no justification for allowing a sword of
Damocles to hang over the press indefinitely.”
An important and necessary corollary of such a right is to ensure the protection of sources
of information. Protection of journalistic sources is one of the basic conditions for the
freedom of the press. Without such protection, sources may be deterred from assisting the
press in informing the public on matters of public interest.
Having regard to the importance of the protection of journalistic sources for press freedom
in a democratic society and the potential chilling effect that snooping techniques may have,
this Court’s task in the present matter, where certain grave allegations of infringement of
the rights of the citizens of the country have been raised, assumes great significance. In this
light, this Court is compelled to take up the cause to determine the truth and get to the
bottom of the allegations made herein.
Initially, this Court was not satisfied with the Writ Petitions that were filed as the same
were completely reliant only upon certain newspaper reports. This Court has generally
attempted to discourage Writ Petitions, particularly Public Interest Litigations, which are
based entirely on newspaper reports without any additional steps taken by the Petitioner.
In this respect, it may be relevant to quote the observations of this Court in the case of
Rohit Pandey v. Union of India, (2005) 13 SCC 702, which are as follows:
“1. …The only basis for the petitioner coming to this Court are two newspaper reports
dated 25−1− 2004, and the other dated 12−2−2004. This petition was immediately filed on
16−2−2004 after the aforesaid second newspaper report appeared….
We expect that when such a petition is filed in public interest and particularly by a member
of the legal profession, it would be filed with all seriousness and after doing the necessary
homework and enquiry. If the petitioner is so public− spirited at such a young age as is so
professed, the least one would expect is that an enquiry would be made from the authorities
concerned as to the nature of investigation which may be going on before filing a petition
that the investigation be conducted by the Central Bureau of Investigation. Admittedly, no
such measures were taken by the petitioner. There is nothing in the petition as to what, in
fact, prompted the petitioner to approach this Court within two−three days of the second
publication dated 12−2−2004, in the newspaper Amar Ujala. Further, the State of Uttar
Pradesh had filed its affidavit a year earlier i.e. on 7− 10−2004, placing on record the steps
taken against the accused persons, including the submission of the charge−sheet before the
appropriate court. Despite one year having elapsed after the filing of the affidavit by the
Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing
seems to have been done by the petitioner. The petitioner has not even controverted what is
stated in the affidavit. Ordinarily, we would have dismissed such a misconceived petition
with exemplary costs but considering that the petitioner is a young advocate, we feel that
the ends of justice would be met and the necessary message conveyed if a token cost of
rupees one thousand is imposed on the petitioner.”
While we understand that the allegations made in these petitions pertain to matters about
which ordinary citizens would not have information except for the investigating reporting
done by news agencies, looking to the quality of some of the petitions filed, we are
constrained to observe that individuals should not file half−baked petitions merely on a few
newspaper reports. Such an exercise, far from helping the cause espoused by the individual
filing the petition, is often detrimental to the cause itself. This is because the Court will not
have proper assistance in the matter, with the burden to even determine preliminary facts
being left to the Court. It is for this reason that trigger happy filing of such petitions in
Courts, and more particularly in this Court which is to be the final adjudicatory body in
the country, needs to be discouraged. This should not be taken to mean that the news
agencies are not trusted by the Court, but to emphasize the role that each pillar of
democracy occupies in the polity. News agencies report facts and bring to light issues which
might otherwise not be publicly known. These may then become the basis for further action
taken by an active and concerned civil society, as well as for any subsequent filings made in
Courts. But newspaper reports, in and of themselves, should not in the ordinary course be
taken to be ready− made pleadings that may be filed in Court.
That said, after we indicated our reservations to the Petitioners regarding the lack of
material,various other petitions have been filed in Court, including by individuals who
were purportedly victims of the alleged Pegasus spyware attack. These subsequently filed
petitions, as well as additional documents filed by others, have brought on record certain
materials that cannot be brushed aside, such as the reports of reputed organizations like
Citizen Lab and affidavits of experts. Additionally, the sheer volume of cross−referenced
and cross− verified reports from various reputable news organizations across the world
along with the reactions of foreign governments and legal institutions also moved us to
consider that this is a case where the jurisdiction of the Court may be exercised. Of course,
the learned Solicitor General suggested that many of these reports are motivated and
self−serving. However, such an omnibus oral allegation is not sufficient to desist from
interference.
It is for this reason that this Court issued notice to the Respondent−Union of India and
sought information from them. We would like to re−emphasize what is already apparent
from the record of proceedings. This Court gave ample opportunity to the
Respondent−Union of India to clarify its stand regarding the allegations raised, and to
provide information to assist the Court regarding the various actions taken by it over the
past two years, since the first disclosed alleged Pegasus spyware attack. We had made it
clear to the learned Solicitor General on many occasions that we would not push the
Respondent−Union of India to provide any information that may affect the national
security concerns of the country. However, despite the repeated assurances and
opportunities given, ultimately the Respondent−Union of India has placed on record what
they call a “limited affidavit”, which does not shed any light on their stand or provide any
clarity as to the facts of the matter at hand. If the Respondent−Union of India had made
their stand clear it would have been a different situation, and the burden on us would have
been different.
Such a course of action taken by the Respondent−Union of India, especially in proceedings
of the present nature which touches upon the fundamental rights of the citizens of the
country, cannot be accepted. As held by this Court in Ram Jethmalani v. Union of India,
(2011) 8 SCC 1, the Respondent−Union of India should not take an adversarial position
when the fundamental rights of citizens are at threat. This Court in that case observed as
follows:

“75. In order that the right guaranteed by clause (1) of Article 32 be meaningful,
and particularly because such petitions seek the protection of fundamental rights, it
is imperative that in such proceedings the petitioners are not denied the information
necessary for them to properly articulate the case and be heard, especially where
such information is in the possession of the State. To deny access to such
information, without citing any constitutional principle or enumerated grounds of
constitutional prohibition, would be to thwart the right granted by clause (1) of
Article 32.

76. Further, inasmuch as, by history and tradition of common law,

judicialproceedings are substantively, though not necessarily fully, adversarial, both
parties bear the responsibility of placing all the relevant information, analyses, and
facts before this Court as completely as possible. In most situations, it is the State
which may have more comprehensive information that is relevant to the matters at
hand in such proceedings…

77. It is necessary for us to note that the burden of asserting, and proving, by
relevant evidence a claim in judicial proceedings would ordinarily be placed upon
the proponent of such a claim; however, the burden of protection of fundamental
rights is primarily the duty of the State. Consequently, unless constitutional grounds
exist, the State may not act in a manner that hinders this Court from rendering
complete justice in such proceedings. Withholding of information from the
petitioners, or seeking to cast the relevant events and facts in a light favourable to
the State in the context of the proceedings, even though ultimately detrimental to the
essential task of protecting fundamental rights, would be destructive to the
guarantee in clause (1) of Article 32…

78. In the task of upholding of fundamental rights, the State cannot be an

adversary. The State has the duty, generally, to reveal all the facts and information
in its possession to the Court, and also provide the same to the petitioners. This is so,
because the petitioners would also then be enabled to bring to light facts and the law
that may be relevant for the Court in rendering its decision. In proceedings such as
 those under Article 32, both the petitioner and the State, have to necessarily be the
eyes and ears of the Court. Blinding the petitioner would substantially detract from
the integrity of the process of judicial decision− making in Article 32 proceedings,
especially where the issue is of upholding of fundamental rights.”

This free flow of information from the Petitioners and the State, in a writ proceeding before
the Court, is an important step towards Governmental transparency and openness, which
are celebrated values under our Constitution, as recognized by this Court recently in the
Anuradha Bhasin (supra) judgment.
Of course, 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 this 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.”
(emphasis supplied)
It is on the strength of the above exception carved out that the Respondent−Union of India
has justified its non−submission of a detailed counter affidavit, viz., by citing security
concerns. It is a settled position of law that in matters pertaining to national security, the
scope of judicial review is limited. However, 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.
Of course, the Respondent−Union of India may decline to provide information when
constitutional considerations exist, such as those pertaining to the security of the State, or
when there is a specific immunity under a specific statute. 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 on 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. They must
justify the stand that they take before a Court. The mere invocation of national security by
the State does not render the Court a mute spectator.
In the present matter, as we have indicated above, the Petitioners have placed on record
certain material that prima facie merits consideration by this Court. There has been no
specific denial of any of the facts averred by the Petitioners by the Respondent−Union of
India. There has only been an omnibus and vague denial in the “limited affidavit” filed by
the Respondent−Union of India, which cannot be sufficient. In such circumstances, we have
no option but to accept the prima facie case made out by the Petitioners to examine the
allegations made.

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 Petitioners do not contend that the State should not
resort to surveillance/collection of data in matters of national security. The complaint of the
Petitioners is about the misuse or likely misuse of spyware in violation of the right to
privacy of citizens. The Respondent−Union of India also does not contend that its agencies
can resort to surveillance/collection of data relating to its citizens where national security
and national interest are not involved. The apprehension of the Respondent−Union of India
is that any inquiry in this behalf should not jeopardize national security and the steps taken
by it to protect national security. There is thus a broad consensus 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.
The only question that remains then is what the appropriate remedy in this case would be.
Mr.Shyam Divan, learned senior counsel appearing on behalf of the Petitioner in Writ
Petition © No. 849 of 2021 sought an interim order from this Court directing the Cabinet
Secretary to put certain facts on an affidavit. On the other hand, most of the other senior
counsel appearing on behalf of the other Writ Petitioners sought an independent
investigation or inquiry into the allegations pertaining to the use of Pegasus software either
by constituting a Special Investigation Team headed by a retired judge or by a Judges’
Committee.

We are of the opinion that in the circumstances of the present case, when the Respondent−
Union of India has already been given multiple opportunities to file an affidavit on record,
and looking to the conduct of the Respondent−Union of India in not placing on record any
facts through their reliance on the “national security” defence, no useful purpose would be
served by issuing directions of the nature sought by Mr. Shyam Divan, apart from causing
a further delay in proceedings.

Instead, we are inclined to pass an order appointing an Expert Committee whose

functioning will be overseen by a retired Judge of the Supreme Court. Such a course of
action has been adopted by this Court in various other circumstances when the Court
found it fit in the facts and circumstances of the case to probe the truth or falsity of certain
allegations, taking into account the public importance and the alleged scope and nature of
the large−scale violation of the fundamental rights of the citizens of the country [See Ram
Jethmalani (supra); 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].
The compelling circumstances that have weighed with us to pass such an order are as
follows:

i. Right to privacy and freedom of speech are alleged to be impacted, which needs
to be examined.

ii. The entire citizenry is affected by such allegations due to the potential chilling
effect.

iii. No clear stand taken by the Respondent−Union of India regarding actions taken
by it.

iv. Seriousness accorded to the allegations by foreign countries and involvement of

foreign parties.

v. Possibility that some foreign authority, agency or private entity is involved in

placing citizens of this country under surveillance.

vi. Allegations that the Union or State Governments are party to the rights’
deprivations of the citizens.

vii. Limitation under writ jurisdiction to delve into factual aspects. For instance,
even the question of usage of the technology on citizens, which is the
jurisdictional fact, is disputed and requires further factual examination.

It is for reason (vi) above that we decline the Respondent− Union of India’s plea to allow
them to appoint an Expert Committee for the purposes of investigating the allegations, as
such a course of action would violate the settled judicial principle against bias, i.e., that
‘justice must not only be done, but also be seen to be done’.
At this juncture, it would be appropriate to state that in this world of conflicts, it was an
extremely uphill task to find and select experts who are free from prejudices, are
independent and competent. Rather than relying upon any Government agencies or any,
we have constituted the Committee and shortlisted expert members based on bio-data’s
and information collected independently. Some of the candidates politely declined this
assignment, while others had some conflict of interest. With our best intentions and efforts,
we have shortlisted and chosen the most renowned experts available to be a part of the
Committee. Additionally, we have also left it to the discretion of the learned overseeing
judge to take assistance from any expert, if necessary, to ensure absolute transparency and
efficiency, as directed in paragraph 62(3).
With the above observations, we constitute 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 a former Judge of Supreme Court of
India.
The terms of reference of the Committee are as follows:
A. To enquire, investigate and Determine:

i. Whether the Pegasus suite of spyware was used on phones or other

devices of the Citizens of India to access stored data, eavesdrop on
conversations, intercept Information and/or for any other purposes not
explicitly stated herein?
ii. The details of the victims and/or persons affected by such a spyware
attack.
iii. What steps/actions have been taken by the Respondent−Union of India
after reports were Published in the year 2019 about hacking of WhatsApp
accounts of Indian citizens, using the Pegasus suite of spyware.
iv. Whether any Pegasus suite of spyware was acquired by the
Respondent−Union of India, or any State Government, or any central or
state agency for use against The citizens of India?
v. If any governmental agency has used the Pegasus suite of spyware on the
citizens of this country, Under what law, rule, guideline, protocol or
lawful procedure was such deployment made?
vi. If any domestic entity/person has used the spyware on the citizens of this
country, then is such a use authorised?
vii. Any other matter or aspect which may be connected, ancillary or
incidental to the above terms of reference, which the Committee may
deem fit and proper to investigate.

B. To make recommendations:

i. Regarding enactment or amendment to existing law and procedures

surrounding surveillance and for securing improved right to privacy.
 ii. Regarding enhancing and improving the cyber security of the nation and
its assets.
iii. To ensure prevention of invasion of citizens’ right to privacy, otherwise
than in accordance with law, by State and/or non−State entities through
such spywares.
iv. Regarding the establishment of a mechanism for citizens to raise
grievances on suspicion of illegal surveillance of their devices.
v. Regarding the setting up of a well−equipped independent premier agency
to investigate cyber security vulnerabilities, for threat assessment relating
to cyberattacks and to investigate instances of yberattacks in the country.
vi. Regarding any ad−hoc arrangement that may be made by this Court as
an interim measure for the protection of citizen’s rights, pending filling
up of lacunae by the Parliament.
vii. On any other ancillary matter that the Committee may deem fit and
proper.

62. The Procedure of the Committee shall be as follows:

(1) The Committee constituted by this Order is authorised to –
a) Devise its own procedure to effectively implement and answer the Terms of
Reference;
b) Hold such enquiry or investigation as it deems fit; and
c) Take statements of any person in connection with the enquiry and call for the
records of any authority or individual.
(2) Former Judge, Supreme Court of India will oversee the functioning of the Committee
with respect to the methodology to be adopted, procedure to be followed, enquiry and
investigation that is carried out and preparation of the report.
(3) The learned overseeing Judge is at liberty to take the assistance of any serving or
retired officer(s), legal expert(s) or technical expert(s) in discharge of his functions.
(4) We request the learned overseeing Judge to fix the honorarium of the members of the
Committee in consultation with them, which shall be paid by the Respondent−Union of
India immediately.
(5) The Respondent−Union of India and all the State Governments, as well as
agencies/authorities under them, are directed to extend full facilities, including providing
support with respect to infrastructure needs, manpower, finances, or any other matter as
may be required by the Committee or the overseeing former Judge to effectively and
expeditiously carry out the task assigned to them by this Court.
(6) Officer on Special Duty/ Registrar, Supreme Court of India, is directed to coordinate
between the Committee, the learned overseeing Judge and the Central/State Governments
to facilitate communication and ensure smooth functioning and expeditious response to,
and implementation of, requests made by the Committee, the learned overseeing Judge or
those named in paragraph 59 above, tasked to assist him.

The Committee is requested to prepare the report after a thorough inquiry and place it
before this Court, expeditiously.