Pegasus row: What’s wrong if a country is using spyware against terrorists? SC asks. Says privacy breach issues be considered

 SC defends national security surveillance in Pegasus case, flags privacy safeguards

The Supreme Court on Tuesday observed what was wrong in using the “spyware against terrorists” and said any report which touched upon the country’s “security and sovereignty” won’t be made public. A bench of Justice Surya Kant and Justice N Kotiswar Singh indicated it may address individual apprehensions of privacy breach but the report of the technical committee was no document to discuss “on the streets”.

The bench said, “Any report that touches the security and sovereignty of the country will not be touched. But individuals who want to know whether they are included can be informed. Yes, individual apprehension must be addressed, but it cannot be made a document for discussion on the streets.” The top court added that it will examine the extent to which the technical panel report could be shared in public.

Advocate Dinesh Dwivedi, appearing for one of the petitioners, said the question was whether the government had the spyware and used it. “If they have it, there is nothing to prevent them from using it continuously even today,” he added. The bench responded, “Please make submissions with regard to disclosure regarding individuals. The kind of scenario we are facing nowadays, let us be slightly responsible…We will see to what extent the report can be shared.”

The top court went on, “What is wrong if the country is using the spyware against the terrorists? To have spyware is not wrong, against whom you are using is the question. You can’t compromise with the security of nation. Private civil individual who has right to privacy will be protected under the Constitution,” the bench said.

Senior advocate Kapil Sibal, appearing for journalist Paranjoy Guha Thakurta, referred to a US district court judgment. “WhatsApp itself has disclosed here. Not a third party. WhatsApp itself has disclosed that there was a hack. That time, your lordships had not indicated whether hacking took place. Even experts didn’t say so. Now you have evidence. Evidence from WhatsApp. We will circulate the judgment. The redacted portion should be given to concerned individuals so they know,” Sibal said.

Solicitor General Tushar Mehta, however, suggested against any “roving enquiry”. There was nothing wrong, Mehta said, in using the spyware against terrorists and they cannot have right to privacy. Senior advocate Shyam Divan, for one of the petitioners, said the report of the technical committee should be disclosed without any redaction. The apex court then posted the hearing for July 30.

On August 25, 2022, the technical panel appointed by the top court to probe the unauthorised use of Pegasus found malware in five of the 29 examined cell phones, but it couldn’t conclude Pegasus was used. Following the report by former apex court Justice R V Raveendran, the top court recorded that the Centre did not cooperate with the Pegasus probe. The top court ordered the probe in 2021 into the allegations of the use of Israeli spyware by government agencies for targeted surveillance of politicians, journalists, and activists, and appointed technical and supervisory committees to examine the matter.

The overseeing panel submitted a “lengthy” three-part report, one of which suggested amending the law to protect citizens’ right to privacy and ensure the nation’s cybersecurity. The technical panel, which included three experts on cyber security, digital forensics, networks, and hardware, was asked by the top court to “inquire, investigate and determine” whether Pegasus spyware was used for snooping on citizens and their probe would be monitored by Raveendran.

The panel members were Naveen Kumar Chaudhary, Prabaharan P, and Ashwin Anil Gumaste. Justice Raveendran, who headed the panel, was assisted by former IPS officer Alok Joshi and cybersecurity expert Sundeep Oberoi in monitoring the inquiry of the technical panel. The apex court order said the probe panel would be empowered to enquire and investigate the steps or actions taken by the Centre after reports in 2019 claimed the hacking of WhatsApp accounts of Indian citizens using the Pegasus suite of spyware.

The apex Court also directed the panel to ascertain if any Pegasus suite was acquired by the union of India, or any state government, or any central or state agency for use against the citizens of India. An international media consortium reported over 300 verified Indian cell phone numbers were on the list of potential targets for surveillance using the Pegasus spyware.

Earlier on August 2022, then Chief Justice of India N V Ramana orally ordered for uploading of the probe report by Justice (Rtd) Raveendran-headed panel, saying the government did not co-operate with the probe panel. However, the publication of the probe panel report was not found in the evening upload order.

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