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The Supreme Court on Tuesday said there was nothing wrong with India possessing spyware for national security purposes, but expressed concern about its alleged misuse against private individuals, reported Bar and Bench.
A bench of Justices Surya Kant and N Kotiswar Singh was hearing a batch of petitions filed in 2021 seeking an independent investigation into allegations that the Centre used the Israeli NSO Group’s spyware Pegasus to spy on journalists, activists, lawyers, politicians and judges.
“What is wrong if the country is using that spyware against the adverse elements?” the court asked, according to Live Law. “To have a spyware, nothing wrong… We cannot compromise and sacrifice the security of the nation. Private civil individual, who have right to privacy, will be protected under the Constitution… their complaint with regard to that [can always be looked at].”
Senior Advocate Dinesh Dwivedi told the court that the key question was whether the government had the spyware and was using it. “If they have it, there is nothing to prevent them from using it continuously even today,” he said.
In October 2021, the court constituted a three-member technical committee led by former Supreme Court Justice RV Raveendran to investigate the matter after the petitioners established a prima facie case and the centre failed to clarify its position.
The court on Tuesday said it would assess how much of the technical committee’s report, submitted in 2022, could be shared with the public.
“The kind of scenario we are facing nowadays, let us be slightly responsible,” said the court.
The bench emphasised that any report concerning the “security and sovereignty of the country” would not be made public. “Yes, individual apprehension must be addressed but it cannot be made a document for discussion on the streets,” the court remarked.
However, it clarified that individuals could be informed whether their names were part of the inquiry.
Solicitor General Tushar Mehta said that “terrorists cannot claim privacy rights”.
Senior Advocate Kapil Sibal, appearing for the petitioner and journalist Paranjoy Guha Thakurta, urged the court to provide at least a redacted version of the report. He cited a judgement by a United States district court in a case filed by WhatsApp, which confirmed that NSO, the maker of Pegasus, had hacked its accounts.
Senior Advocate Shyam Divan backed Sibal’s demand, arguing that the report should be disclosed without redaction. “State has used a spyware against its own citizenry,” he said.
When the court said these were allegations, Divan responded: “There is substantial proof that it was used against journalists, judges.”
The technical committee, in its sealed report submitted in 2022, found that malware had been detected in five of the 29 devices it examined, but concluded that it was not Pegasus. The court also recorded that the Centre did not cooperate with the panel.
The court had earlier rejected the Centre’s argument that it could not reveal details on national security grounds and refused its suggestion to set up its own technical panel, opting instead for an independent inquiry. It held that national security concerns cannot completely exclude judicial review.
The petitioners in the case include advocate ML Sharma, Communist Party of India (Marxist) Rajya Sabha MP John Brittas, journalists N Ram, Sashi Kumar, Paranjoy Guha Thakurta, SNM Abidi, Prem Shankar Jha, Rupesh Kumar Singh, Ipsa Shatakshi, as well as the Editors Guild of India and activist Jagdeep Chhokkar.
The Pegasus controversy erupted in 2021 following revelations by an international consortium of media outlets, including The Wire. They reported that Pegasus spyware may have been used to target the phones of over 40 Indian journalists, public officials, activists, and politicians. Analysis by Amnesty International’s technical team found evidence of successful and attempted infections in several devices.
In India, Congress leader Rahul Gandhi, former Election Commissioner Ashok Lavasa, Union ministers Ashwini Vaishnaw and Prahlad Singh Patel, industrialist Anil Ambani and former Central Bureau of Investigation Director Alok Verma were among the potential targets, The Wire had reported.
The matter will be heard next by the Supreme Court on July 30.
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