STRIPPING OFF THE CLOAK OF SECRECY

“If you want to keep a secret, you must hide it from yourself.”

-  Kaushik Deka

A three-judge bench of the Supreme Court, headed by Chief Justice N.V. Ramana, quoted this line from George Orwell’s seminal novel 1984 while delivering its order on October 27 on the Pegasus spyware controversy. The court took exception to the government’s refusal to file a detailed response to the allegations made by the petitioners in the case, and observed that it “should not take an adversarial position when the fundamental rights of citizens are at threat”.

Even while admitting that the scope of judicial review is limited in matters relating to national security, the three-judge bench categorically asserted that the state cannot ‘get a free pass’ by raising the spectre of ‘national security’. The court also appointed a threemember expert committee to examine the Union government’s alleged involvement in the controversial use of the spyware to snoop on its citizens.

Clarifying the legitimate limits of secrecy on grounds of national security, the court order argues that the govern ment can only decline information pertaining to national security if the State has specific immunity under a specific law, but it must ‘prove and justify the same in court on affidavit’. The court also defended its intervention: ‘The mere invocation of national security by the State does not render the court a mute spectator’.