Manas Dasgupta
NEW DELHI, Apr 29: The Supreme Court does not find anything wrong with the central government using spyware for national security if did not target the civil society.
“What is wrong if the country used that spyware for security reasons against anti-national elements? There is nothing wrong with having spyware. Against whom it is used, is the point,” Justice Surya Kant, heading a Bench with Justice N. Kotiswar Singh, addressed petitioners while hearing petitions linked to the Pegasus case.
The court also said details of an investigation report by its committee into the snooping allegations cannot be made public because it concerns the security and sovereignty of the country. The court also mentioned that there is a need for caution due to the “kind of situation we are facing,” hinting at the Pahalgam terror attack.
The court said anyone who suspects that he was snooped upon using Pegasus — spyware developed by the Israeli cyber-arms company NSO Group — can approach the court and would get a response on whether he was targeted.
The observation from the court came after senior advocate Dinesh Dwivedi said the “basic question” in this litigation was whether or not the government possessed Pegasus, and if it was used to conduct illegal surveillance on private citizens, including journalists and judges.
Justice Kant said the right to privacy of “private civilians” had to be indeed protected from state surveillance. “But we cannot compromise the security of the nation, especially in the present scenario,” Justice Kant emphasised during the nearly 20-minute hearing which came a few days after the Pahalgam terrorist attacks. Solicitor General Tushar Mehta interjected to agree that “terrorists cannot have any privacy rights.”
The petitioners, represented by senior advocates Kapil Sibal, Shyam Divan, Mr Dwivedi and others, have sought a disclosure of the final findings of an apex court-appointed technical committee, which had conducted digital forensics to detect malware on mobile phones submitted to it. The petitioners had also asked for copies of a separate report submitted to the apex court by former Supreme Court judge, Justice RV Raveendran, with suggestions to enhance existing laws and procedures related to surveillance and securing rights including privacy, cyber security, etc. These reports were handed over to the Supreme Court in sealed covers almost three years ago.
Mr Divan recalled in open court that in August 2022, a Special Bench headed by then Chief Justice of India NV Ramana, after perusing the technical committee report, had orally briefed in open court that out of 29 phones examined by the technical committee, five were found infected with “some malware.” The senior lawyer reminisced that the Bench had also conveyed the committee’s observation that the Centre was “not cooperative.”
Mr Sibal, appearing for journalist-petitioner Paranjoy Guha Thakurta, said there was added proof now in the form of a U.S. District Court decision which said India was one of the countries in which Pegasus was employed for surveillance. He sought the release of redacted copies of the technical committee report in order to at least know if Pegasus was used on the phones which were submitted for examination.
To the petitioners’ reference to the US district court judgment last year that held Pegasus maker NSO Group liable for the targeting of about 1,400 devices, the court said, “Show us the US district court judgment. Yes, individual apprehension must be addressed, but it cannot be made a document for discussion on the streets.”
“The kind of situation we are facing now, we have to be careful,” Justice Kant, referring to the Pahalgam tragedy in which terrorists killed 25 tourists and a Kashmiri pony ride operator dead.
Justice Kant agreed that the persons who had apprehended Pegasus surveillance and submitted their phones for checking were entitled to know “whether they were hacked or saved from it.” The Bench asked the lawyers to provide a list of names of those who, apprehending that they were hacked with Pegasus, had submitted their phones to the technical committee.
Mr Divan said the issue was very serious if the state had used the spyware to spy on its own citizens. “This is a very serious situation. I can show that this particular spyware was used against citizens of India, against journalists, including judges. We have repeatedly been asking for a listing of the case. The entire report should be placed in the public domain. It is an open court system here,” Mr Divan persisted.
However, the court firmly said these were in the realm of allegations, and it would “not disclose even a single word which may affect the sovereignty and security of the nation.” “But if anyone has apprehensions, they must be adequately responded to. But it should not be made a document of discussion in the streets. Where individuals have been affected, we will examine the question of release of those portions [in the report], provided they do not affect the security of the nation… With the scenario happening now, we have to be careful,” Justice Kant said.
In 2021, a consortium of 17 news organisations investigated a massive data leak and the probe revealed a list of 50,000 phone numbers that were allegedly snooped upon using Pegasus.
The alleged targets in India included Congress leader Rahul Gandhi, former Election Commissioner Ashok Lavasa, Trinamool Congress leader Abhishek Banerjee and multiple journalists and activists. The revelations raised a political storm, with the Opposition going all-out against the government.
The government responded that the allegations regarding surveillance on specific people has “no concrete basis of truth.” Stressing that there was a process in place for any interception, the government said this procedure ensures any interception, monitoring or decryption of any information through any computer resource “is done as per due process of law.”
Amid the row, the Supreme Court’s technical committee probed the snooping allegations. The committee found no proof of Pegasus in the 29 phones it examined, but had found malware in five of them. The court listed the case on July 30 for further hearing.
