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Synopsis

Reiterating that the security of the nation cannot be compromised, the Supreme Court of India on Tuesday, April 29, observed that there is nothing wrong in having spyware; the real question is against whom it is being used.

"To have spyware, there is nothing wrong. The question is against whom it is being used. We cannot compromise and sacrifice the SECURITY of the nation," a Bench led by Justice Surya Kant said while hearing a batch of petitions seeking a probe into the alleged use of the spyware Pegasus by the government(s) to snoop on politicians, activists, and journalists.

Court made this observation while responding to a question raised by Senior Advocate Dinesh Dwivedi, who asked whether the authorities possessed the spyware and whether they had purchased it.

Solicitor General Tushar Mehta, appearing for the Centre, said, "If the country is using it for security reasons, against a TERRORIST, what is wrong?"

While referring to a United States District Court judgment, Senior Advocate Kapil Sibal, appearing for the petitioners, stated that India was one of the countries where phones had been hacked.

Senior Advocate Shyam Divan pressed for the release of the Justice Raveendran Committee report, stating that India follows an open court system.

Interjecting, Solicitor General Tushar Mehta opposed the suggestion, stating, "Not in the case of sovereignty and security of the nation."

Justice Surya Kant further remarked, "We are very clear about it. Any court touching the security of the nation — we are not going to disclose a single word. Yes, when individuals are affected, that part we can release."

Following the submissions, Senior Advocates Kapil Sibal and Shyam Divan sought permission to circulate certain additional documents.

The Bench, also comprising Justice N. Kotiswar Singh, accordingly ordered, "Mr. Sibal and some of the petitioners seek to place some documents on record. They may do so within a period of two weeks. Post the matter on July 30."

Last Hearing

The present case was last heard elaborately in August 2022. The Supreme Court, on 25 August 2022 referred to the report submitted by the Committee appointed by the top court and said that the committee found no definitive proof to suggest that Pegasus malware had been 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 stated that the report had 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 could create security issues & possibility of criminals getting access for misuse.

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

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

Senior Advocate Kapil Sibal, appearing for the petitioners, had submitted that though he understands security issues, a redacted report ought to be made available to people and especially those who had 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 was 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 had 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.

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

Petition

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

Advocate Sharma mentioned in his plea 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 had "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/JointTechnical 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