'Nothing Wrong In Country Using Spyware For Security; Question Is Against Whom It's Used: Supreme Court In Pegasus Case

There is nothing inherently wrong with a country possessing spyware for security purposes; the real concern lies in against whom it is used, the Supreme Court observed orally on Tuesday (April 29) during the hearing of the Pegasus spyware matter.A bench of Justices Surya Kant and N Kotiswar Singh was considering a batch of writ petitions filed in 2021 seeking an independent probe into the allegations of targeted surveillance of journalists, activists and politicians using the Israeli spyware Pegasus.During the hearing, Senior Advocate Dinesh Dwivedi(for some petitioners), told the bench that the basic issue in the case was whether the Government of India had the Pegasus spyware and was using it. "The basic issue is whether they have this spyware or whether they purchased it or not. If they have it, there is nothing to prevent them from using it continuously even today. So even if it comes to the fore that my clients were not hacked..."Interjecting Dwivedi, Justice Kant said, "What is wrong if the country is using the spyware. To have a spyware, there is nothing wrong. Against whom it is used it is the question. We cannot compromise or sacrifice the security of the nation."Solicitor General of India Tushar Mehta said, "Terrorists cannot claim privacy rights." Justice Kant added, "A civil individual who has the right to privacy will be protected under the Constitution."The bench adjourned the hearing till July 30, 2025, allowing the petitioners to place on record a judgment pronounced by a Court in the United States of America in a case filed by WhatsApp against Pegasus.At the outset, Solicitor General of India Tushar Mehta, for the Union, requested adjournment, saying that the matter is coming after a long time. Justice Surya Kant then asked, "What survives in this matter?"Senior Advocate Kapil Sibal, appearing for journalist Paranjoy Guha Thakurta, then cited the judgment of the US District Court, which held that NSO hacked WhatsApp using Pegasus malware. "They have given a finding that India is one of the countries where there was a hack," Sibal said.Justice Surya Kant however repeated his question. "We have given a detailed judgment, constituted a committee (led by Justice Raveendran to probe the allegations). Now what survives?".Sibal said that when the Court constituted the Committee in 2021, it did not have any clarity whether the hacking actually took place. However, with the US Judgment, there is a factual clarity on that aspect, with WhatsApp itself saying that its accounts were targeted. Sibal requested the bench to order the release of the report of the Justice Raveendran Committee to the affected individuals, redacting portions which might be sensitive."That time your lordships had no indication whether hacking had taken place. Even experts didn't say so. Now you have evidence. Evidence by WhatsApp. We will circulate the (US) judgment. The redacted portion (of the report) should be given to the concerned individuals so they know," Sibal said.Senior Advocate Shyam Divan, for another petitioner, backed Sibal's request, but said that the report should be disclosed without any redaction, saying that we follow a system of "open court". Solicitor General Tushar Mehta, however objected, saying that portions affecting national security cannot be disclosed. Justice Surya Kant also clarified that the Court will not allow the disclosure of details relating to national security, but the portions relating to individuals can be disclosed. SG Tushar Mehta said that it was not clear if the individuals, who were asked to submit their devices to the Committee did so.Sibal and Divan then pointed out that the Supreme Court had in 2021 had revealed the statement of the Committee that the Government of India did not cooperate with its investigation. Justice Surya Kant said that the report of the Committee is lying sealed and even he has not seen its contents.The bench dictated an order saying : "Mr Sibal seeks leave to circulate some documents. He may do so within two weeks. Post the matter on July 30,2025"The petitioners include Advocate ML Sharma, journalists N Ram and Sashi Kumar, CPI(M) Rajya Sabha MP John Brittas, five Pegasus targets( Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh and Ipsa Shataksi), social activist Jagdeep Chhokkar, Narendra Kumar Mishra and the Editors Guild of India.In October 2021, the Court had constituted an expert panel headed by former Supreme Court judge Justice RV Raveendran to probe the matter. The Court constituted the probe committee after making a prima facie finding that the petitioners had established a case and that the Centre failed to give clarity in the matter.In a judgment emphasizing the importance of free speech and press freedom and expressing concerns about unauthorized surveillance, the bench led by CJI NV Ramana stated that national security ground raised by the State cannot totally exclude judicial review.The Central Government had refused to...

'Nothing Wrong In Country Using Spyware For Security; Question Is Against Whom It's Used: Supreme Court In Pegasus Case

Debby Jain

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