In an observation while hearing the Pegasus spyware case, the Supreme Court said there is nothing wrong with the country using spyware as part of national security. However, its use against members of the civil society or private individuals must be looked at.
“We cannot compromise and sacrifice the security of the nation,” the Supreme Court added.
“What is wrong if the country is using spyware? No issue in having spyware. Against whom it is used is the question,” the Justice Surya Kant-led bench observed. SC further stressed that private individuals and civil society members who have a right to privacy would be protected under the constitution.
At this point, Solicitor General Tushar Mehta asked what was wrong in using spyware against terrorists. “Terrorists cannot have the right to privacy,” Mehta said. Justice Kant then said that civil society members who have the right to privacy would be protected under the constitution.
The court’s observation on the Centre’s use of spyware came after senior advocate Rakesh Dwivedi sought to know if the Centre had purchased Pegasus and if it was still being used against people.
The Supreme Court was hearing a plea filed by journalists, members of civil society and others seeking a copy of a report filed by the court-appointed technical committee that probed allegations on whether the Centre hacked phones to snoop on citizens using Pegasus.
US Court finds WhatsApp hacked by Pegasus, India one of the victims
Senior advocate Kapil Sibal—representing journalist Paranjoy Guha Thakurta—sought to submit a judgment rendered by a US District Court which found Israeli-backed surveillance firm NSO liable for hacking Whatsapp through its spyware Pegasus.
“They have given a finding that India is one of the countries where there was a hack,” Sibal said. In 2021, when the Supreme Court constituted the technical committee led by ex-SC judge R Raveendran, there was no clarity whether hacking by Pegasus had taken place or not, Sibal said.
“Now you have evidence... evidence by WhatsApp,” Sibal said stressing the need for a copy of the report to be made public.
The Supreme Court-appointed technical committee’s October 2022 report said there was no conclusive proof that Pegasus was deployed on 29 phones that were submitted for scrutiny. The committee said it had found malware on five phones, but it was unclear whether that malware could be linked to Pegasus.
Report maybe selectively disclosed: SC
The Supreme Court said it would peruse its technical committee’s October 2022 report on the Centre’s use of Pegasus and address individual concerns of security breach, if any.
Any report touching the sovereignty and security of the country will not be made public, the top court said.
The Court also remarked that the expert committee report on the alleged misuse of the spyware cannot be made public, 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 apprehensions must be addressed but it cannot be made a document for discussion on the streets,” it added.
Solicitor General Tushar Mehta however expressed his apprehension over the release of the report submitted in a sealed cover and sought to assist the court on the same.
