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Synopsis

The Supreme Court on Thursday while referring to the report submitted by the Committee appointed by the top court noted that the committee found no definitive proof to suggest that Pegasus malware was installed in the 29 devices voluntarily handed over.

A bench of the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli said that the report has been received in different parts which include report of technical committee, report of overseeing judge, report on responses received by technical committees, information about malware which may create security issues & possibility of criminals getting access for misuse.

The bench also noted that one part of the oversight committee report lays down aspects about the protection of citizens, accountability, redressal & futuristic action, etc.

CJI Ramana said that in 5 out of 29 phones, the report has suggested that malware (if any) found in the phones does not necessarily suggest presence of Pegasus malware as report lays down that it could also be due to “poor hygiene”. “We intend to look over what issues we can release in the public domain,” CJI led bench added.

Senior Advocate Kapil Sibal appearing for the petitioners submitted that though he understands security issues, a redacted report must be made available to people and especially those who have given their phones to the committee suspecting Malware.

Additionally, another Advocate appearing for the petitioner argued that since her client had handed over their phone, it is imperative that they know what was the malware infection in light of the Pegasus report.

The bench, while refusing to comment on the issue informed the counsel that the Central Government has taken the same stand before the committee as it did before the bench which is of non-disclosure about whether the software is used, if at all or not, in any capacity whatsoever.

 The bench on the submission made by an Advocate stating that "Let national security not be extended to such an extent that everything else gets covered", said that the issue has been looked into in another judgment.

On the issue of whether the report should be released in public domain, bench said it may have to look into it as some persons who handed over phones did not want report in public domain.

The batch of petitions had sought a court-monitored probe by Special Investigation Team into the reports of alleged snooping using Israeli spyware Pegasus.

Advocate Sharma mentioned in his plea stated that “the Pegasus scandal is a matter of grave concern and a serious attack upon Indian democracy, judiciary, and country security. The widespread and unaccountable use of surveillance is morally disfiguring.”

Earlier, the Supreme Court had appointed a committee headed by Justice RV Raveendran (Retired SC Judge), while rejecting the plea of the Union of India to allow them to appoint an Expert Committee for the purposes of investigating the allegations.

On August 16, 2021, the Centre had denied all allegations stating that the petitions are based on “conjectures and surmises or on other unsubstantiated media reports or uncorroborated material”. It has been added that in order to “dispel false narratives by certain vested interests,” the Union of India will constitute a Committee of Experts, which will go into all aspects of the issue.

Later, Refusing to file an affidavit on the specific use of Pegasus spyware software against civil society members and journalists, the Centre told the Supreme Court through Solicitor General of India (SGI) Tushar Mehta that, it has "filed an affidavit stating that in view of prevailing statutes, we are in compliance" and that an inquiry committee would be set up to look into the matter. Solicitor General Tushar Mehta also told the court that in the interest of national security, the matter could not be made a part of "public discourse".

The overseeing Judge was assisted in this task by Mr. Alok Joshi, former IPS officer (1976 batch) & Dr. Sundeep Oberoi, Chairman, Sub Committee in (International Organisation of Standardisation/International Electro-Technical Commission/Joint
Technical Committee).

Background

Pegasus is spyware developed by the Israeli cyber arms firm NSO Group that can be covertly installed on mobile phones (and other devices) running most versions of iOS and Android.

The plea had added, “Privacy is not about the wish to hide, as is often asserted. It is about having a space of one’s own where our thoughts and being are not the instruments of someone else’s purposes.”

“Pegasus is not just a surveillance tool. It is a cyber-weapon being unleashed on the Indian polity. Even if authorised (which is doubtful), the use of Pegasus poses a national security risk.” – stated plea.

Case Title: ML Sharma v. PM | N. Ram v. UOI | Editors Guild of India v. UOI