The Supreme Court is scheduled to pronounce verdict on Wednesday, October 27, 2021 on a batch of pleas seeking independent probe into the Pegasus snooping matter.
The bench hearing the matter is comprising Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli who had reserved order on September 13, saying it only wanted to know whether or not the Centre used the Pegasus spyware through illegal methods to allegedly snoop on citizens.
The apex court had observed orally as per the online reports that it would set up a technical expert committee to inquire into the matter and pass an interim order on the pleas seeking an independent probe into the grievances of the alleged surveillance of certain eminent Indians by hacking their phones using Israeli firm NSO’s spyware, Pegasus. The top court’s observations on constituting the committee assume significance in view of the Centre’s statement that it would set up an expert panel on its own to look into the entire issue.
The apex court had said it would pronounce order in a few days and asked Solicitor General Tushar Mehta, appearing for the Centre, to mention the case if the government had a re-think about filing a detailed affidavit. The bench had said that it only wanted to know from the Centre, which expressed unwillingness to file a detailed affidavit citing national security, whether Pegasus was used to allegedly spy on individuals and if it was done lawfully.
Observing that concerns have been raised by journalists and others over violation of privacy in the Pegasus row, the top court had said it was not interested in knowing the details related to national security.
The Centre maintained it did not wish to file a detailed affidavit on whether a particular software is used or not as it was not a matter for public discussion and will not be in the “larger national interest”.
The law officer had contended that the disclosure whether the country was using a particular software or not may cause “harm” and alert all potential targets, including terror groups.
“We had to have your affidavit to understand your stand. We do not want to say anything further,” the court had told Mehta, adding that if a spyware is used by the government then it has to be as per the procedure established by the law.
The law officer had said the government has “nothing to hide” and that is why the Centre has on its own said it will constitute a committee of domain experts who will look into the allegations and report to the court.
“I am not averse to certain individuals claiming invasion of privacy. This is serious and must be gotten into. The question is whether it is Pegasus or something. Our stand is putting this into an affidavit will not serve national interest… Hence allow us to form a committee of domain experts without the government members,” Mehta had added.
The apex court was hearing a batch of pleas, including senior journalists N Ram and Sashi Kumar along with the Editors Guild of India, seeking independent probe into the alleged Pegasus snooping matter.
The pleas seeking independent probe are related to reports of alleged snooping by government agencies on eminent citizens, politicians and scribes by using Israeli firm NSO’s spyware Pegasus. An international media consortium had reported that over 300 verified Indian mobile phone numbers were on the list of potential targets for surveillance using Pegasus spyware.
The Centre has “unequivocally” denied all allegations regarding illegal surveillance. In a brief affidavit on August 15, it had told the Supreme Court that, nevertheless, “with a view to dispel any wrong narrative spread by certain vested interests and with an object of examining the issues raised”, it would set up “a Committee of Experts in the field which will go into all aspects of the issue”.
The Times of India in its blog mentioned that a lawsuit was filed by Whatsapp on 31st October 2019 in a Court in California, USA alleging that the Israeli NSO Group had targeted some 1,400 WhatsApp users globally with this spyware and had violated US and California laws as well WhatsApp’s terms-of-service. Whatsapp alleged the NSO group by saying that the spyware Pegasus was sold to multiple government and private agencies due to which hundreds of Indians might also have been affected.
On 20th May 2019, this vulnerability was communicated by Whatsapp to CERT-In (the Indian Computer Emergency Response Team), which is a government-mandated information technology (IT) security organization.
In Indian Law, the request for interception of communication can occur only through a senior police official, moving towards the Home Secretary and then final approval from a committee headed by the Chief Secretary of the State or the Cabinet Secretary at the Center. The reason behind the surveillance should only be ‘in the interest of the sovereignty and integrity of India’.
It’s been more than two years since the people of India have got the Right to Privacy as the fundamental right but still the government has failed to provide a law to exercise this effectively. The PDP Bill has still not become an Act. Since the private bodies do not constitute ‘state’ within the meaning of Article 12 and the Indian Constitution does not allow writ remedies against the purely private bodies, Indians have very limited recourse available under Section 43A of IT Act, 2000 read with Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (Privacy Rules).
Photo: Dmitry Ratushny-unsplash
