Protection of sources vital for freedom of press, says SC during Pegasus hearing

Bench led by CJI Ramana observes that sources may be deterred from helping journalists give information to people on matters of public interest if they do not have protection.

File photo of the Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: Batting for the freedom of the press in a modern democracy, the Supreme Court Wednesday said the protection of “journalistic sources” is one of the basic conditions of the media’s right to free speech and expression.

In its order directing the constitution of a technical committee to “thoroughly investigate” the alleged Pegasus snooping controversy, a three-judge bench led by Chief Justice of India N.V. Ramana weighed in on the media’s role as an “important pillar of democracy”.

The court said without protection, sources may be deterred from assisting journalists in informing people on matters of public interest, and this would be an “assault” on the role of media as a “vital public watchdog”. Protection of sources is an “important and necessary corollary” of freedom of media, it said.

“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,” stated the judgment, which has dealt extensively with and individual’s right to privacy and circumstances under which it can be breached.

The court even said freedom of the press is “somewhat allied to the concerns of privacy”, and it is in this light that it “is compelled to take up the cause to determine the truth and get to the bottom of the allegations” made in the petitions on the use of the Pegasus software.

The petitioners in the case have alleged the Israeli-origin malware primarily targeted a section of people who are seen as vocal critics of the central government or its policies.

This is the first time the top court has acknowledged the role of sources in the field of journalism. Sources can include individuals or citizens who come forward and provide information to the media about any wrongdoing or an illegal act within a state or non-state entity. In several instances, such people may also be whistleblowers.

However, the court felt that incidents such as surveillance and the knowledge that one is under the threat of being spied may have a “chilling effect on the freedom of speech”.

It added such knowledge may affect the way an individual decides to exercise his or her rights, and such a scenario might result in “self-censorship”, which may undermine the ability of the press to provide accurate and reliable information.” “This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy,” said the bench.

‘Privacy is sacrosanct’

The bench quoted the apex court’s 2020 judgment in the Anuradha Bhasin case, where the issue of disconnection of 4G services in Kashmir, following the scrapping of Article 370, had been dealt with. In that judgment, the top court, highlighting the importance of freedom of the press, had said “journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely”.

Besides journalists, the court said for citizens, their privacy is sacrosanct. Technology has become a tool to upgrade life, but at the same time, it has the potential to infringe an individual’s private space.

And this right, the court said, is directly infringed when there is surveillance or spying, either by the State or by any external agency.

If done by the State, the same must be justified on constitutional grounds. “This court is cognisant of the State’s interest to ensure that life and liberty are preserved and must balance the same,” the bench added.

In today’s world, it acknowledged, information gathered by intelligence agencies through surveillance is essential for the fight against violence and terror, and to access this information, a need may arise to interfere with the right of an individual to privacy.

However, this interference should only be carried out when it is absolutely necessary, and is proportionate to the objective of protecting national security or interest, the court said.

“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,” said the bench.

(Edited by Poulomi Banerjee)