1066 [2021]REPORTS

SUPREME COURT 6 S.C.R. 1066 [2021] 6 S.C.R.

A MANOHAR LAL SHARMA

v.
UNION OF INDIA AND ORS.
(Writ Petition (Crl.) No. 314 of 2021)
B OCTOBER 27, 2021
[N. V. RAMANA, CJI, SURYA KANT AND
HIMA KOHLI, JJ.]
Cyber attack: Pegasus suite of spywares – Allegation of cyber
attack on citizens of India/infiltration of software into individual
C
device – Petitioners seeking independent investigation into the
allegations – Held: Every citizen of India ought to be protected
against the violations of privacy – 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 – Of course, if done
D by State, the same must be justified on constitutional grounds – In
the instant matter, time was granted to Union of India to place on
record facts pertaining to the events highlighted by the petitioners
– Despite repeated assurances and opportunities given, the
respondent-Union of India placed on record only a “limited
affidavit” which did not shed any light on their stand or provide
E
any clarity as to the facts of the matter at hand – 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 is not accepted –
Complaint of petitioners is about the misuse or likely misuse of
F spyware in violations of the right to privacy of citizens –
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
G
than nation’s security would be illegal, objectionable and a matter
of concern – Petitioners had placed certain material that prima
facie merit consideration by this Court – There was no specific denial
by Union of India of any of the facts averred by the petitioner –
Omnibus and vague denial in the “limited affidavit” is not found
H sufficient – Prima facie case of petitioners accepted to examine the
1066
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1067

allegations made – A Technical Committee is constituted comprising A

of three members, including experts in cyber security, digital
forensics, networks and hardware whose functioning would be
overseen by a retired Judge of Supreme Court – The Committee is
requested to prepare a report after thorough inquiry and place it
before this court expeditiously – Matter to be listed after eight weeks.
B
K.S. Puttaswamy (Privacy-9J.) v. Union of India (2017)
10 SCC 1 : [2017] 10 SCR 569; Indian Express
Newspapers (Bombay) Private Limited v. Union of India,
(1985) 1 SCC 641 : [1985] 2 SCR 287; Anuradha
Bhasin v. Union of India, (2020) 3 SCC 637; Rohit
Pandey v. Union of India (2005) 13 SCC 702; Ram C
Jethmalani v. Union of India (2011) 8 SCC 1 : [2011] 8
SCR 725; Extra Judicial Execution Victim Families
Association v. Union of India (2013) 2 SCC 493 : [2013]
1 SCR 140; G.S. Mani v. Union of India order
dated 12.12.2019 in W.P. (Crl.) No. 348 of 2019 - D
referred to.
Case Law Reference
[2017] 10 SCR 569 referred to para 32
[1985] 2 SCR 287 referred to para 38 E
(2020) 3 SCC 637 referred to para 39
(2005) 13 SCC 702 referred to para 42
[2011] 8 SCR 725 referred to para 46
[2013] 1 SCR 140 referred to para 55 F
CRIMINAL/CIVIL APPELLATE JURISDICTION: Writ Petition
(Crl.) No.314 of 2021.
(Under Article 32 of the Constitution of India)
With G
Writ Petition (Civil) Nos.826, 909, 861, 849, 855, 829, 850, 848,
853, 851 and 890 of 2021.
Colin Gonsalves, Kapil Sibal, Shyam Divan, Arvind P. Datar,
Dinesh Dwivedi, Rakesh Dwivedi, C. U. Singh, Ms. Meenakshi Arora,
Sr. Advs., Mishra Saurabh, Siddharth Seem, Kushagra Sinha, Shiyas H
1068 SUPREME COURT REPORTS [2021] 6 S.C.R.

A KR, Ms. Mishi Choudhary, Prasanth Sugathan, Satya Mitra, Manish

Tiwari, Abhimanyu Tewari, Lzafeer Ahmad B. F., Ms. Rupali Samuel,
Raghav Tankha, Rahul Narayan, Ms. Samiksha Godiyal, Ms. Ria Singh
Sawhney, Ms. Udayaditya Banerjee, Govind Manoharan, Ms. Sugandha
Yadav, Mihir C. Naniwadekar, Rahul Unnikrishnan, Abhinav Sekhri,
Rangoli Seth, Prateek K. Chadha, Prateek Dwivedi, Eklavya Dwivedi,
B
Nishant Singh, Yash Sinha, Krishnesh Bapat, Ms. Natasha Maheshwari,
Ms. Vrinda Bhandari, Ms. Monika Dwivedi, Tanmay Singh, Shadan
Farasat, Nizam Pasha, Ms. Vidusshi, Zubin, Shourya Dasgupta, Bharat
Gupta, Ms. Tanvi Tuhina, Suhavi Arya, Aman Naqvi, Ms. Resmitha R.
Chandran, Biju Joseph, Hardik Vashisht, Ms. Pooja Rohatgi, Advs. for
C the Appellant.
Tushar Mehta, SG, K. M. Nataraj, ASG, Ms. Garima Prashad,
AAG, Dr. Abhishek Manu Singhvi, Sr. Adv., Rajat Nair, Kanu Agrawal,
Ankur Talwar, Arvind Kumar Sharma, Mukesh Kumar Maroria, Gurmet
Singh Makker, Amrish Kumar, G. Prakash, Ms. Priyanka Prakash, Ms.
D Beena Prakash, Suhan Mukerji, Vishal Prasad, Abhishek Manchanda
for M/s PLR Chambers and Co., Rajiv Shankar Dvivedi, Varun Sinha,
Sushant Kr. Sarkar, Rishabh Jain, Ms. Arti Dvivedi, Ms. Ruchira Goel,
Advs. for the Respondents.
Petitioner-in-Person
E The Order of the Court was passed :
ORDER
The Court is convened through Video Conferencing.
“If you want to keep a secret, you must also hide it from yourself.”
F
-George Orwell, 1984
1. The present batch of Writ Petitions raise an Orwellian concern,
about the alleged possibility of utilizing modern technology to hear what
you hear, see what you see and to know what you do. In this context,
this Court is called upon to examine an allegation of the use of such a
G technology, its utility, need and alleged abuse. We make it clear that our
effort is to uphold the constitutional aspirations and rule of law, without
allowing ourselves to be consumed in the political rhetoric. This Court
has always been conscious of not entering the political thicket. However,
at the same time, it has never cowered from protecting all from the
H abuses of fundamental rights. All that we would like to observe in this
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1069

regard is a reiteration of what had already been said by this Court A

in Kesavananda Bharati v. State of Kerala, (Opinion of Justice
Khanna) AIR 1973 SC 1461:
“1535….Judicial review is not intended to create what is
sometimes called judicial oligarchy, the aristrocracy (sic) of the
robe, covert legislation, or Judge-made law. The proper forum to B
fight for the wise use of the legislative authority is that of public
opinion and legislative assemblies. Such contest cannot be
transferred to the judicial arena. That all constitutional
interpretations have political consequences should not obliterate
the fact that the decision has to be arrived at in the calm and
dispassionate atmosphere of the court room, that Judges in order C
to give legitimacy to their decision have to keep aloof from the din
and controversy of politics and that the fluctuating fortunes of
rival political parties can have for them only academic interest.
Their primary duty is to uphold the Constitution and the laws without
fear or favour and in doing so, they cannot allow any political D
ideology or economic theory, which may have caught their fancy,
to colour the decision…”
2. A short conspectus of the events leading up to the present
batch of petitions would not be misplaced to highlight the scope of the
issues at hand. In September 2018, Citizen Lab, which is a laboratory E
based out of the University of Toronto, Canada, released a report detailing
the software capabilities of a “spyware suite” called Pegasus that was
being produced by an Israeli Technology firm, viz., the NSO Group. The
report indicated that individuals from nearly 45 countries were suspected
to have been affected.
F
3. The Pegasus suite of spywares can allegedly be 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. Once the software infiltrates an individual’s device, it
allegedly has the capacity to access the entire stored data on the device,
and has real time access to emails, texts, phone calls, as well as the G
camera and sound recording capabilities of the device. Once the device
is infiltrated using Pegasus, the entire control over the device is allegedly
handed over to the Pegasus user who can then remotely control all the
functionalities of the device and switch different features on or off. The
NSO Group purportedly sells this extremely powerful software only to H
1070 SUPREME COURT REPORTS [2021] 6 S.C.R.

A certain undisclosed Governments and the end user of its products are
“exclusively government intelligence and law enforcement agencies” as
per its own website.
4. In May 2019, the global messaging giant WhatsApp Inc.
identified a vulnerability in its software that enabled Pegasus spyware to
B infiltrate the devices of WhatsApp’s users. This news was followed by
a disclosure that the devices of certain Indians were also affected, which
fact was 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.

C 5. On 15th June 2020, Citizen Lab, in collaboration with the

international human rights organization, Amnesty International uncovered
another spyware campaign which allegedly targeted nine individuals in
India, some of whom were already suspected targets in the first spyware
attack.
6. On 18th July 2021, a consortium of nearly 17 journalistic
D
organizations from around the world, including one Indian organization,
released the results of a long investigative effort indicating the alleged
use of the Pegasus software on several private individuals. This
investigative effort was based on a list of some 50,000 leaked numbers
which were allegedly under surveillance by clients of the NSO Group
E through the Pegasus software. Initially, it was discovered that nearly
300 of these numbers belonged to Indians, many of whom are senior
journalists, doctors, political persons, and even some Court staff. At the
time of filing of the Writ Petitions, nearly 10 Indians’ devices were
allegedly forensically analyzed to confirm the presence of the Pegasus
software.
F
7. The above reports resulted in largescale action across the globe,
with certain foreign governments even diplomatically engaging with the
Israeli Government to determine the veracity of the allegations raised,
while other governments have initiated proceedings internally to determine
the truth of the same.
G
8. Respondent-Union of India, through the Hon’ble Minister of
Railways, Communications and Electronics and Information Technology,
took the stand in Parliament on 18th July 2021, when asked about the
alleged cyberattack and spyware use, that the reports published had no
factual basis. The Minister also stated that the Amnesty report itself
H indicated that the mere mention of a particular number in the list did not
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1071

confirm whether the same was infected by Pegasus or not. Further, the A
Minister stated that NSO had itself factually contradicted many of the
claims made in the Amnesty report. Finally, he stated that the Indian
statutory and legal regime relating to surveillance and interception of
communication is extremely rigorous, and no illegal surveillance could
take place.
B
9. Some of the Writ Petitioners before this Court allege to be
direct victims of the Pegasus attack, while others are Public Interest
Litigants. They raise the issue of the inaction on the part of the
Respondent-Union of India to seriously consider the allegations raised,
relating to the purported cyberattack on citizens of this country.
Additionally, the apprehension expressed by some Petitioners relates to C
the fact that, keeping in mind the NSO Group disclosure that it sold its
Pegasus software only to vetted Governments, either some foreign
government or certain agencies of the Respondent-Union of India are
using the said software on citizens of the country without following the
due procedure established under law. Therefore, to ensure credibility of D
the process, most of the Petitioners are seeking an independent
investigation into the allegations.
10. Before considering the issues at hand on merits, it is necessary
for this Court to summarize the events that transpired in the Courtroom
proceedings, to give some context to the order being passed. E
11. On 10th August 2021, it was recorded by this Court that a copy
of some of the petitions in this batch had been served on the learned
Solicitor General. The learned Solicitor General took an adjournment at
that time to get instructions.
12. On 16th August 2021, a “limited affidavit” was placed on record F
by the learned Solicitor General that was filed by the Additional Secretary,
Ministry of Electronics and Information Technology, Union of India. The
relevant parts of the limited affidavit filed by the Respondent- Union of
India are as follows:
“2. I state and submit that due to the limited time at the disposal G
of the deponent/respondents, it is not possible to deal with
all the facts stated and the contentions raised in the batch
of petitions before this Hon’ble Court. I am therefore, filing
this limited affidavit at this stage while reserving liberty to
file further affidavit hereafter in detail.
H
1072 SUPREME COURT REPORTS [2021] 6 S.C.R.

A I, however, respectfully submit that my not dealing with

any of the petitions para wise may not be treated as my having
admitted the truthfulness or otherwise of any of the contents
thereof.
3. At the outset, it is submitted that I hereby unequivocally deny
B any and all of the allegations made against the Respondents in the
captioned petition and other connected petitions. A bare perusal
of the captioned petition and other connected petitions makes it
clear that the same are based on conjectures and surmises or on
other unsubstantiated media reports or incomplete or
uncorroborated material. It is submitted that the same cannot be
C the basis for invoking the writ jurisdiction of this Hon’ble Court.
4. It is submitted that this question stands already clarified on the
floor of the Parliament by the Hon’ble Minister of Railways,
Communications and Electronics & Information Technology of
India, Government of India. A copy of the statement of the Hon’ble
D Minister is attached herewith and marked as Annexure R-1. In
that view of the matter, in the respectful submission of the
deponent, nothing further needs to be done at the behest of the
Petitioner, more particularly when they have not made out any
case.
E 5. It is, however, submitted that with a view to dispel any wrong
narrative spread by certain vested interests and with an
object of examining the issue raised, the Union of India
will constitute a Committee of Experts in the field which
will go in to all aspects of the issue.”
F On that day, we heard learned senior counsel appearing on behalf
of the Petitioners and the learned Solicitor General at some length and
adjourned the matter for further hearing.
13. On the next date of hearing, on 17th August 2021, this Court
indicated to the learned Solicitor General, while issuing notice to the
Respondent-Union of India, that the limited affidavit filed by them was
G
insufficient for the Court to come to any conclusion regarding the stand
of the Respondent-Union of India with respect to the allegations raised
by the Petitioners. As the limited affidavit itself recorded that the detailed
facts were not adverted to due to a paucity of time, we indicated to the
learned Solicitor General that we were willing to give them further time
H to enable the Respondent-Union of India to file a more detailed affidavit.
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1073

The learned Solicitor General indicated his apprehension that the disclosure A
of certain facts might affect the national security and defense of the
nation.
14. This Court clarified at that juncture that it was not interested
in any information that may have a deleterious impact on the security of
the country. However, the Respondent-Union of India could still place B
on record facts pertaining to the events highlighted by the Petitioners,
without disclosing information adjudged to be sensitive by the relevant
authorities.
15. Mr. Kapil Sibal, learned senior counsel appearing for the
Petitioners in Writ Petition (C) Nos. 826 and 851 of 2021, fairly stated C
that the Petitioners were also concerned about the national interest and
would not press for any such information. The learned Solicitor General
again took some time to seek instructions.
16. When the matter was next listed on 07th September 2021, the
learned Solicitor General requested an adjournment, and we directed
D
that the matter be listed on 13th September 2021.
17. On 13th September 2021, we were again informed by the
learned Solicitor General that placing the information sought by the
Petitioners on an affidavit would be detrimental to the security interests
of the nation. The learned Solicitor General submitted that such
information could not be made a matter of public debate as the same E
could be used by terror groups to hamper national security. He reiterated
the statement dated 18th July 2021 made by the Hon’ble Minister of
Railways, Communications and Electronics and Information Technology
on the floor of the Parliament regarding the statutory mechanism
surrounding surveillance and interception in the country which ensures F
that unauthorized surveillance does not take place. He finally submitted
that, to assuage the concerns of the public and to dispel any wrong
narratives, considering the technical nature of the issues, the Respondent-
Union of India would be willing to constitute an Expert Committee which
will go into all aspects and file a report before this Court.
G
18. Mr. Kapil Sibal, learned senior counsel appearing on behalf of
the Petitioners in Writ Petition (C) Nos. 826 and 851 of 2021, submitted
that the Respondent-Union of India should not act in a manner that would
prevent the Court from rendering justice and should not withhold
information from the Court in a matter concerning the alleged violation
of fundamental rights of citizens. He submitted that in the year 2019, H
1074 SUPREME COURT REPORTS [2021] 6 S.C.R.

A when certain reports of Pegasus hacking WhatsApp came to light, the

then Hon’ble Minister of Law and Information Technology and
Communication had acknowledged the reports of hacking in Parliament,
but the Respondent-Union of India had not indicated what actions were
taken subsequently, which information they could have disclosed on
affidavit. Learned senior counsel submitted that such inaction by the
B
Respondent-Union was a matter of grave concern, particularly when
reputed international organizations with no reason for bias against the
nation had also accepted the fact of such an attack having been made.
Mr. Sibal finally submitted that an independent probe into the alleged
incident required to take place under the supervision of retired Judges of
C this Court, as was ordered by this Court in the Jain Hawala case. He
objected to the suggestion of the learned Solicitor General that the
Respondent-Union of India itself be allowed to form a Committee on the
ground that any Committee formed to probe the allegations raised by the
Petitioners should be completely independent from the Respondent-Union
of India.
D
19. Mr. Shyam Divan, learned senior counsel appearing on behalf
of the Petitioner in Writ Petition (C) No. 849 of 2021 who claims to be
one of the parties whose phone was directly affected by Pegasus,
submitted that Pegasus enabled an entity to not only surveil or spy on an
individual, but also allowed them to implant false documents and evidence
E in a device. He relied on affidavits filed by two experts in the field of
cyber security to buttress his submission regarding the nature and function
of the software. Mr. Divan submitted that once such a largescale
cyberattack and threat had been made public and brought to the
knowledge of the Respondent-Union of India, it was the State’s
F responsibility to take necessary action to protect the interests and
fundamental rights of the citizens, particularly when there existed the
risk that such an attack was made by a foreign entity. Mr. Divan pressed
for the interim relief sought in Writ Petition (C) No. 849 of 2021, whereby
a response was sought on affidavit from the Cabinet Secretary. Mr.
Divan also supported the prayer made by Mr. Sibal regarding the
G constitution of a special Committee or Special Investigation Team to
probe the allegations.
20. Mr. Rakesh Dwivedi, learned senior counsel appearing on
behalf of the Petitioners in Writ Petition (C) No. 853 of 2021 submitted
that the Petitioners are senior journalists who are victims of the Pegasus
H attack. He submitted that if the Respondent-Union of India had made a
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1075

statement on affidavit that it had not used a malware or spied on the A

Petitioners in an unauthorized manner, that would have been the end of
the matter. Instead, the Respondent-Union of India had not provided
any information on affidavit. He therefore urged the Court to constitute
an independent Committee under its supervision rather than allowing the
Respondent-Union of India to constitute a Committee, as suggested by
B
the learned Solicitor General, to avoid any credibility issues. He further
submitted that requiring the Petitioners to hand over their phones to a
Committee appointed by the Respondent-Union of India, when certain
allegations had been raised against the Respondent-Union of India, would
amount to a secret exercise whose results would not be trusted by the
Petitioners or the public. C
21. Mr. Dinesh Dwivedi, learned senior counsel appearing on behalf
of the Petitioner in Writ Petition (C) No. 848 of 2021 submitted that his
client is a respected journalist whose device had been infected with the
Pegasus malware. The main thrust of his submission was that if any
pleading was not specifically denied, it would be deemed to have been D
admitted. As the Respondent-Union of India had not specifically denied
the Petitioner’s allegation, the same should therefore be deemed to be
admitted by the Respondent-Union of India. Learned senior counsel
submitted that such an attack on the privacy of the Petitioner was not
only a violation of his fundamental right, but also amounted to chilling his
freedom of speech as a journalist. E
22. Ms. Meenakshi Arora, learned senior counsel appearing on
behalf of the Petitioner in Writ Petition (C) No. 829 of 2021, supported
the prayer made by Mr. Kapil Sibal regarding the constitution of an
independent Special Investigation Team headed by a retired Judge to
investigate the matter. F
23. Mr. Colin Gonsalves, learned senior counsel appearing on behalf
of the Petitioners in Writ Petition (C) No. 909 of 2021, wherein Petitioner
No. 1 is a journalist, lawyer and human rights activist who is an affected
party, while Petitioner No. 2 is a registered society which works on the
promotion and protection of digital rights and digital freedom in India, G
submitted that a number of such digital interceptions were being conducted
by the States and the Respondent-Union of India. He submitted that, in
light of the allegations raised against the Respondent-Union of India in
the present matter, it would not be appropriate to allow the Respondent-
Union of India to form a Committee to investigate the present allegations.
Further, the learned senior counsel pointed to the actions taken by various H
1076 SUPREME COURT REPORTS [2021] 6 S.C.R.

A foreign governments in light of the purported spyware attack to highlight

the veracity of the reports by news agencies and the seriousness with
which the allegations were being viewed in other countries.
24. Mr. M. L. Sharma, petitioner-in-person in Writ Petition (Crl.)
No. 314 of 2021, submitted that the Pegasus suite of spywares was
B different from other spyware as it allowed an agency to gain complete
control over an individual’s device. He submitted that the software could
be used to plant false evidence into an individual’s device, which could
then be used to implicate the said person. He therefore submitted that
the alleged use of Pegasus on the citizens of the country, was of grave
concern.
C 25. The learned Solicitor General rebutted the arguments of the
Petitioners and submitted that there was no reason to question the
credibility of any Committee that might be constituted by the Respondent-
Union of India as only experts independent of any association with the
Respondent-Union of India would be a part of the same. He further
D stated that all technologies had the capability of either being used or
abused, and it could not be said that the use of such a software was per
se impermissible, particularly when a robust legal mechanism existed to
check the use of the same. He finally reiterated that this Court should
allow the Respondent-Union of India to constitute an Expert Committee
which would be under its supervision.
E
26. 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.
27. At the outset, certain nuances of the right to privacy in India-
its facets and importance, need to be discussed. Historically, privacy
F rights have been ‘property centric’ rather than people centric. This
approach was seen in both the United States of America as well as in
England. In 1604, in the historical Semayne’s case, 77 ER 194 (KB) it
was famously held that “every man’s house is his castle”. This marked
the beginning of the development of the law protecting people against
G unlawful warrants and searches.
28. As William Pitt, the Earl of Chatham stated in March 17631:
“The poorest man may in his cottage bid defiance to all the force
of the Crown. It may be frail—its roof may shake—the wind
1
Lord Brougham, Historical Sketches of Statesmen who Flourished in the Time of
H George III First Series, Vol. 1 (1845).
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1077

may blow through it—the storm may enter, the rain may enter— A
but the King of England cannot enter!—all his force dares not
cross the threshold of the ruined tenement!”
29. As long back as in 1890, Samuel Warren and Louis Brandeis
observed in their celebrated article ‘The Right to Privacy’2:
“Recent inventions and business methods call attention to the next B
step which must be taken for the protection of the person, and for
securing to the individual what Judge Cooley calls the right “to be
let alone.”…numerous mechanical devices threaten to make good
the prediction that “what is whispered in the closet shall be
proclaimed from the house-tops.” C
30. However, unlike the ‘property centric’ origin of privacy rights
in England and under the Fourth Amendment in the Constitution of the
United States of America, in India, privacy rights may be traced to the
‘right to life’ enshrined under Article 21 of the Constitution. When this
Court expounded on the meaning of “life” under Article 21, it did not
D
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.
31. It is in this context that we must contextualize the issues that
are being raised in this batch of petitions. We live in the era of information
revolution, where the entire lives of individuals are stored in the cloud or E
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.
32. Members of a civilized democratic society have a reasonable
expectation of privacy. Privacy is not the singular concern of journalists F
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 G
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
2
Samuel Warren and Louis Brandeis, The Right to Privacy, Harvard Law Review, Vol.
4 (5), 193 (Dec. 15, 1890). H
1078 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
…
B 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
C 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)
D 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.”
(emphasis supplied)
E
33. 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.
F However, any restrictions imposed must necessarily pass constitutional
scrutiny.
34. In K.S. Puttaswamy (Privacy-9J.) (supra), this
Courtconsidered the need to protect the privacy interests of individuals
while furthering legitimate State interests. This Court therefore directed
G 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
H requirement. These three requirements apply to all
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1079

restraints on privacy (not just informational privacy). They A

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
B
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 C
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
D
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, E
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
F
and liberty, and the freedoms embodied in Part III is subject
to the same restraints which apply to those freedoms.”
(emphasis supplied)
35. The right to privacy is directly infringed when there is
surveillance or spying done on an individual, either by the State or by any G
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:
3
Ellen Alderman and Caroline Kennedy, The Right to Privacy, 223 (1995). H
1080 SUPREME COURT REPORTS [2021] 6 S.C.R.

A “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
B
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.”
C
36. 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.
D To access this 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
E
sufficient statutory safeguards, by following the procedure established
by law under the Constitution.
37. This trade-off between the right to privacy of an individual
and the security interests of the State, has been recognized world over
with the renowned scholar Daniel Solove4 commenting on the same as
F
follows:
“The debate between privacy and security has been framed
incorrectly, with the trade-off between these values understood
as an all-or-nothing proposition. But protecting privacy need
not be fatal to security measures; it merely demands
G
oversight and regulation. We can’t progress in the debate
between privacy and security because the debate itself is
flawed.

4
Daniel J. Solove, Nothing to Hide: The False Tradeoff between Privacy and Security
H (2011).
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1081

The law suffers from related problems. It seeks to balance privacy A

and security, but systematic problems plague the way the balancing
takes place….
Privacy often can be protected without undue cost to security. In
instances when adequate compromises can’t be achieved, the
trade-off can be made in a manner that is fair to both sides. We B
can reach a better balance between privacy and security. We
must. There is too much at stake to fail.”
(emphasis supplied)
38. Somewhat allied to the concerns of privacy, is the freedom of
the press. Certain observations made by this Court in the case of Indian C
Express Newspapers (Bombay) Private Limited v. Union of
India,(1985) 1 SCC 641 may be extracted:
“25. The freedom of press, as one of the members of the
Constituent Assembly said, is one of the items around which the
greatest and the bitterest of constitutional struggles have been D
waged in all countries where liberal constitutions prevail. The said
freedom is attained at considerable sacrifice and suffering and
ultimately it has come to be incorporated in the various written
constitutions…”
39. It is undeniable that surveillance and the knowledge that one E
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 F
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:
G
“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 H
1082 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B
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
C 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.”
(emphasis supplied)
D 40. 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.

E 41. 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
F determine the truth and get to the bottom of the allegations made herein.
42. 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
G 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
H are two newspaper reports dated 25-1-2004, and the other dated
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1083

12-2-2004. This petition was immediately filed on 16-2-2004 after A

the aforesaid second newspaper report appeared….
2. 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- B
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 C
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 D
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 E
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.”
(emphasis supplied) F

43. 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 G
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 H
1084 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B
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.
44. That said, after we indicated our reservations to the Petitioners
C
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
D 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
E
reports are motivated and self-serving. However, such an omnibus oral
allegation is not sufficient to desist from interference.
45. It is for this reason that this Court issued notice to the
Respondent-Union of India and sought information from them. We would
F 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
G 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
H
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1085

hand. If the Respondent-Union of India had made their stand clear it A

would have been a different situation, and the burden on us would have
been different.
46. 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 B
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 C
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. D
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, E
judicial proceedings 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... F

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 G
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 H
1086 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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,
B 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
C 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.”
(emphasis supplied)
D
47. 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.
E
48. 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:

F “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,
G 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.”
H (emphasis supplied)
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1087

49. It is on the strength of the above exception carved out that the A
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
B
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.
50. Of course, the Respondent-Union of India may decline to
provide information when constitutional considerations exist, such as those C
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 D
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.
51. In the present matter, as we have indicated above, the E
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 F
case made out by the Petitioners to examine the allegations made.
52. 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 G
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 H
1088 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
B
53. 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 (C) 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
C 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.
54. We are of the opinion that in the circumstances of the present
D 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” defense, no useful
purpose would be served by issuing directions of the nature sought by
E Mr. Shyam Divan, apart from causing a further delay in proceedings.
55. 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
F 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
G 12.12.2019 in W.P. (Crl.) No. 348 of 2019].
56. 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.
H
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1089

ii. The entire citizenry is affected by such allegations due to A

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. B

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 C
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. D
57. 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’.
E
58. 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
F
biodatas 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, G
to ensure absolute transparency and efficiency, as directed in paragraph
62(3).
59. 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 H
1090 SUPREME COURT REPORTS [2021] 6 S.C.R.

A functioning will be overseen by Justice R.V. Raveendran, former Judge,

Supreme Court of India. The learned overseeing Judge will be assisted
in this task by:
i. Mr. Alok Joshi, former IPS officer (1976 batch) who has
immense and diverse investigative experience and technical
B knowledge. He has worked as the Joint Director,
Intelligence Bureau, the Secretary(R), Research and
Analysis Wing and Chairman, National Technical Research
Organisation.
ii. Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7
C (International Organisation of Standardisation/ International
Electro-Technical Commission/Joint Technical Committee),
a sub-committee which develops and facilitates standards
within the field of software products and systems. Dr.
Oberoi is also a part of the Advisory Board of Cyber Security
Education and Research Centre at Indraprastha Institute
D of Information Technology, Delhi. He is globally recognized
as a cyber security expert.
60. The three members Technical Committee [hereinafter
referred to as the “Committee”] shall comprise of:

E i. Dr. Naveen Kumar Chaudhary, Professor (Cyber Security

and Digital Forensics) and Dean, National Forensic Sciences
University, Gandhinagar, Gujarat. Dr. Chaudhary has over
two decades of experience as an academician, cyber
security enabler and cyber security expert. He specializes
in cyber security policy, network vulnerability assessment
F and penetration testing.
ii. Dr. Prabaharan P., Professor (School of Engineering), Amrita
Vishwa Vidyapeetham, Amritapuri, Kerala. He has two
decades of experience in computer science and security
areas. His areas of interest are malware detection, critical
G infrastructural security, complex binary analysis, AI and
machine learning. He has many publications in reputed
journals.
iii. Dr. Ashwin Anil Gumaste, Institute Chair Associate
Professor (Computer Science and Engineering), Indian
H Institute of Technology, Bombay, Maharashtra. He has been
MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1091

granted 20 US patents and has published over 150 papers A

and authored 3 books in his field. He has received several
National awards including the Vikram Sarabhai Research
Award (2012) and Shanti Swarup Bhatnagar Prize for
Science and Technology (2018). He has also held the
position of Visiting Scientist at the Massachusetts Institute
B
of Technology, USA.
61. 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 C
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- D
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, E
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 F
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 G
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. H
1092 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
B 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,
C for threat assessment relating to cyberattacks and to
investigate instances of cyberattacks 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.
D
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 -
E (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
F individual.
(2) Justice R. V. Raveendran, 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.
G
(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.

H
 MANOHAR LAL SHARMA v. UNION OF INDIA AND ORS. 1093

(4) We request the learned overseeing Judge to fix the A

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, B
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. C

(6) Mr. Virender Kumar Bansal, 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 D
to, and implementation of, requests made by the Committee,
the learned overseeing Judge or those named in paragraph
59 above, tasked to assist him.
63. The Committee is requested to prepare the report after a
thorough inquiry and place it before this Court, expeditiously. E

64. List the matter after 8 weeks.

Devika Gujral Directions issued.

F