The Supreme Court on Tuesday remarked there was nothing wrong in the country using a spyware for its security but allegations of it being used against private individuals will be looked at.
The Bench of Justices Surya Kant and N Kotiswar Singh was hearing petitions alleging use of Pegasus spyware by the Government of India to snoop on journalists, judges, activists and others.
In a reference to the ongoing security situation in the country, the Court remarked that one must be careful in these times.
When a lawyer submitted that nothing was stopping the State from using the spyware if it has been purchased, the Court said, "What is wrong if the country is using that spyware against the adverse elements? 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]."
The Court also remarked that the expert committee report on the alleged misuse of the spyware cannot be made public thereby, turning it into a matter of discussion on the streets.
It added that any report touching "security and sovereignty of the country" will not be disclosed but affected individuals can be informed of the report.
"Yes individual apprehension must be addressed but it cannot be made a document for discussion on the streets," the Court said.
The Court is seized of a slew of petitions seeking probe into allegations that Pegasus spyware was used by the Indian government to snoop on individuals by infecting their electronic devices like mobile phones.
Israel-based spyware firm NSO is best known for its Pegasus spyware, which it claims is sold only to “vetted governments” and not to private entities, though the company does not reveal which governments it sells the controversial product to.
An international consortium of news outlets, including the Indian news portal The Wire, had in 2021, released a series of reports indicating that the said the software may have been used to infect the mobile devices of several persons including Indian journalists, activists, lawyers, officials, a former Supreme Court judge and others.
The reports had referred to a list of phone numbers that were selected as potential targets. Upon analysis by a team from Amnesty International, some of these numbers were found to have traces of a successful Pegasus infection while some showed attempted infection, the reports had said.
The Supreme Court had constituted the 3-member expert committee to probe the scandal. The committee headed by former Supreme Court judge, Justice RV Raveendran,
submitted its report to the Court in July 2022.
In its report, the committee had concluded that the spyware was not found in the twenty-nine mobile phones examined by it. The committee also said that some malware was found in 5 of the 29 devices but the same was not Pegasus. Pertinently, the committee also said that Government of India did not assist the committee in its task.
During the hearing of the matter today, the Court was informed that WhatsApp before a US district has now accepted that such hacking had taken place.
"Now there is evidence of court and evidence of WhatsApp," Senior Advocate Kapil Sibal, representing the petitioners, submitted.
Sibal added that a redacted report of the Committee can be supplied at the least to the petitioners. However, the Court said,
"This can be an objective question answer type. You may ask whether I am there or not. We can answer in yes or no"
Senior Advocate Shyam Divan, however pointed to the seriousness of the case.
"State has used a spyware against its own citizenry. This is worse," he said.
At this, the Court remarked that they are only allegations at this stage. In response, Divan said,
"There is substantial proof that it was used against journalist, judges."
Interjecting, Solicitor General Tushar Mehta submitted that such submissions were being made with some other intention.
"These submissions are being made for somewhere else," he said.
When Divan said that the entire report must be made available since the judicial system in India is an open court system, Justice Kant said,
"Any report which touches security and sovereignty of the country it will not be disclosed. But individuals who want to know whether they are included that can be informed."
The matter will be next taken up on July 30.
