‘Ready to address individual apprehensions of privacy breach’
New Delhi: The Supreme Court on Tuesday wondered what was wrong in using Israeli spyware Pegasus “against terrorists” after a probe panel filed a report on the issue and said any finding that touches upon the country’s “security and sovereignty” won’t be made public.
A bench of Justice Surya Kant and Justice N Kotiswar Singh indicated it may address individual apprehensions of privacy breach but the report of the technical committee was no document to discuss “on the streets”.
The bench said, “Any report which touches the security and sovereignty of the country will not be touched. But individuals who want to know whether they are included, that can be informed. Yes, individual apprehension must be addressed but it cannot be made a document for discussion on the streets.” The controversy surrounding alleged use of the Israeli spyware to surveil Opposition leaders, journalists and activists came to light in 2021, prompting several people to move the top court.
The apex court ordered a probe into the allegations and appointed technical and supervisory committees to examine the issue.
The top court added it will examine the extent to which the technical panel report could be shared in public.
Advocate Dinesh Dwivedi, appearing for one of the petitioners, said the question was whether the government had the spyware and used it.
“If they have it, there is nothing to prevent them from using it continuously even today,” he added.
The bench responded, “Please make submissions with regard to disclosure regarding individuals. The kind of scenario we are facing nowadays, let us be slightly responsible…We will see to what extent the report can be shared.”
The top court went on, “What is wrong if the country is using the spyware against the terrorists? To have spyware is not wrong, against whom you are using is the question. You can’t compromise with the security of nation. Private civil individual who has right to privacy will be protected under the Constitution,” the bench said.
Senior advocate Kapil Sibal, appearing for journalist Paranjoy Guha Thakurta, referred to a US district court judgment.
“WhatsApp itself has disclosed here. Not a third party. WhatsApp itself has disclosed that there was a hack. That time your lordships had not indicated whether hacking took place. Even experts didn’t say so. Now you have evidence. Evidence by WhatsApp. We will circulate the judgment. The redacted portion should be given to concerned individuals so they know,” Sibal said.
Solicitor general Tushar Mehta, however, suggested against any “roving enquiry”.
There was nothing wrong, Mehta said, in using the spyware against terrorists and they cannot have right to privacy.
Senior advocate Shyam Divan, for one of the petitioners, said the report of the technical committee should be disclosed without any redaction.
The apex court then posted the hearing on July 30.
On August 25, 2022, the technical panel appointed by the top court to probe the unauthorised use of Pegasus found malware in five of the 29 examined cell phones but it couldn’t conclude Pegasus was used.
Following the report by former apex court Justice R V Raveendran, the top court recorded the Centre did not cooperate with the Pegasus probe.
The top court ordered the probe in 2021 into the allegations of the use of the Israeli spyware by government agencies for targeted surveillance of politicians, journalists, and activists and appointed technical and supervisory committees to examine the matter.
The overseeing panel submitted a “lengthy” three-part report, one of which suggested amending the law to protect citizens’ right to privacy and ensure the nation’s cyber security.
