Must ensure protection of sources: What SC said on media freedom in Pegasus order

“Freedom of press is an important pillar of democracy,” the Supreme Court bench said in its order forming a panel to probe the allegations.
Supreme Court of India
Supreme Court of India
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Freedom of press is an important pillar of democracy, the Supreme Court observed on Wednesday and said the court's task in the Pegasus matter assumes great significance with regard to the importance of protection of journalistic sources and the potential chilling effect that snooping techniques may have. The apex court, which appointed a three-member expert panel to probe into the alleged use of Israeli spyware Pegasus for surveillance of certain people in India, highlighted the aspect pertaining to the freedom of press and said it is compelled to take up the cause in the matter to determine truth and get to the bottom of the allegations made.

A bench headed by Chief Justice NV Ramana said 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 a 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,” said the bench, also comprising Justices Surya Kant and Hima Kohli.

In its 46-page order passed on a batch of pleas seeking independent probe into the alleged Pegasus snooping matter, the top court said protection of journalistic sources is one of the basic conditions for the freedom of press and without it sources may be deterred from assisting the media 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,” it said.

Referring to the apex court judgement delivered in January last year on pleas against curbs imposed in Jammu and Kashmir after the Union government’s abrogation of provisions of Article 370 of the Constitution, which gave special status to the erstwhile state, the bench said in that verdict the court had highlighted the importance of freedom of press in a modern democracy.

An important and necessary corollary of such a right is to ensure the protection of sources of information, it said. It said initially, the court was not satisfied with the pleas filed in the matter as they were completely reliant only upon certain newspaper reports.

The bench said the apex 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.

“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,” the SC said. 

The top court said such an exercise, far from helping the cause espoused by an individual filing the plea, 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,” the bench said.

It said this should not be taken to mean that news agencies are not trusted by court, but to emphasize the role that each pillar of democracy occupies in the polity.  The bench said news agencies report facts and bring to light issues which might otherwise not be publicly known and 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 readymade pleadings that may be filed in court, it said.

The bench said later, various other pleas were filed in the court, including by individuals who were purportedly victims of the alleged Pegasus spyware attack. It said the subsequently filed petitions and additional documents filed by others have brought on record certain materials that cannot be brushed aside.

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, it said.

It noted that during the arguments, Solicitor General Tushar Mehta had 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 said. 

An international media consortium had reported that over 300 verified Indian mobile phone numbers were on the list of potential targets for alleged surveillance using Israeli firm NSO's spyware Pegasus.

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