The Supreme Court in the Pegasus case underlined the principle that the Government cannot take an “adversarial position” when the fundamental rights of citizens are under threat.

The Government cannot decline information to citizens that concern their privacy by simply raising the bogey of national security. The State cannot blame judges of “judicial oligarchy” or acting “the aristocracy in the robe” for seeking information on behalf of citizens. The court would have to certainly intervene if denial of information by the State affected the rights of citizens.

Also read: Decoding the Pegasus verdict

A Bench led by Chief Justice of India N.V. Ramana refused to accept the Government’s version that a disclosure whether Pegasus was in play or not would endanger national security.

The apex court, in its Pegasus order, said it had no intention to encroach into the “political thicket”, but it also would not cower when the fundamental rights of citizens were at stake. In this context, it referred to the wisdom of Justice H.R. Khanna’s opinion in the Kesavananda Bharati case judgment of 1973.

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Justice Khanna had said the primary duty of judges was to “uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision”.

The court’s resolve to defend constitutional rights in the Pegasus order of October 27 finds resonance with its May 31 judgment in the COVID-19 case. If right to privacy was at stake in Pegasus, public health was its concern in the COVID1-9 judgment.

In that judgment, the court refused to remain a “silent spectator when constitutional rights of citizens are infringed by Executive policies”. The court had brushed aside the Government’s argument that it had no right to interfere in its vaccination policy and the Executive should have “room for free play in the joints while dealing with a pandemic of this magnitude”.

Duty to review policies

Instead, the court upheld its duty to judicially review government policies. “Judicial review and soliciting constitutional justification for policies formulated by the Executive is an essential function, which the courts are entrusted to perform,” the court had reminded the government. The Centre had to reverse its dual vaccine pricing policy.

The Pegasus order refers to the court’s judgment in Ram Jethmalani case of 2011, which advised that rather than stonewall petitioners, the Government should share information and help them “better articulate” their case. This should especially be the case when the information sought by the petitioners was in the possession of the State.

“In the task of upholding fundamental rights, the State cannot be an adversary. The State has the duty, generally, 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 then be enabled to bring to light facts and the law that may be relevant for the court in rendering its decision. In proceedings under Article 32 [of the Constitution], both the petitioner and the State, have to necessarily be the eyes and ears of the court,” the Pegasus order quoted from the 2011 judgment.