The State cannot keep a secret from the court merely on the bogey of ‘national security’ and expect the judiciary to remain a “mute spectator”, the Supreme Court drew the line for the Government on Wednesday.
The claim has to be backed by evidence to prove that the disclosure of the information sought by the court would affect national security concerns.
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A Bench led by Chief Justice N.V. Ramana was responding in its order to submissions made by Solicitor General Tushar Mehta, for the Centre, in the Pegasus snooping case. Mr. Mehta had refused the court’s repeated advice to file a detailed affidavit responding to the snooping allegations, blankly saying “the disclosure of certain facts might affect the national security and defence of the nation”.
Mr. Mehta’s reluctance had seen the Bench ask itself the question whether the Union of India could actually decline information to the Supreme Court.
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Constitutional considerations
“Of course, the Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State. 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,” the court clarified.
The court accepted that judicial review in national security matters was limited. The judiciary has been circumspect while dealing with matters of national security. However, the court’s delicacy does not licence the Government to call for an “omnibus prohibition” against judicial review.
“The 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,” the Supreme Court emphasised.
In the Pegasus order, the court reminded the Government that 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 apex court pointed out.
