On Thursday, the Supreme Court released parts of the confidential report filed by its appointed committee, which investigated the alleged use of the unauthorised Israeli NSO group’s Pegasus software for snooping on Indian citizens. Chief Justice of India NV Ramana said that while no conclusive evidence of using the spyware was found, the panel noted that the central government “has not cooperated”.
The bench was responding to a petition filed by lawyers, politicians, journalists and civil rights activists, who were allegedly targeted by the spyware. In August last year, the Centre refused to confirm or deny the allegations of using Pegasus for the surveillance of citizens, saying that it would be against national interest.
Subsequent to the government’s stance, in October 2021, the apex court appointed a committee of experts which included three members – Dr Naveen Kumar Chaudhary (professor and dean at the National Forensic Sciences University, Gandhinagar), Dr Prabaharan P (professor at the Amrita Vishwa Vidyapeetham, Kerala), and Dr Ashwin Anil Gumaste (Institute Chair Associate professor of computer science and engineering at IIT Bombay). The panel was supervised by retired SC judge, Justice RV Raveendran.
SC Hearing And Committee Findings
“They (the panel) observed that the Government of India has not cooperated. Whatever stand you have taken here (in the court earlier), you have taken the same stand, it appears, before the committee also,” said the CJI-headed three-judge bench to Solicitor General Tushar Mehta, representing the Union government. The SG responded, “I am not aware. I will not be able to respond.” Following this, CJI Ramana moved to examine the report.
The Pegasus spyware was allegedly used to gather information from 29 phones, and while there was some malware found on five of them, the SC indicated that since the data available was limited, it is inconclusive to determine whether it was Pegasus. The three-judge bench comprising the CJI and Justices Surya Kant and Hima Kohli said, “…inconclusive evidence…In five phones they found some malware, but it doesn’t mean it is a malware of Pegasus. That’s what the finding appears (to be).”
Citing the report, the CJI said, “Based on the above, it is concluded that five of the 29 phones may have had some infection due to a malware or due to poor cyber hygiene… data available is limited and hence inconclusive to determine…” Meanwhile, the individuals whose phones had been submitted for the probe requested for the report to not be released to the public. The SC will decide how much of the report is to be made public. Reportedly, there are three parts of the report submitted, two of which are by the technical committee, while one of them is by the supervising judge.
The CJI indicated that the committee’s report contained information about the malware that could potentially be exploited by criminals to bypass law enforcement and also create new, sophisticated malware. The top judge noted that there is “information/research material related to malware, attribution that might pose threat to the national security apparatus” and “material extracted from private mobile instruments which may contain private confidential information”. “It is better to look into it and what portions we can release,” reasoned the CJI, in light of the request.
The bench said that the first part of the two-part report answers the court’s queries, “Whether…Pegasus…was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated herein?” The second part consisted of the committee’s recommendations on how to improve cyber security, as sought by the bench. However, the report by supervising Justice (Retd) Raveendran is to be uploaded on the official website, as there is nothing secretive about that, as observed by the court.
“We understand there is some security, confidentiality, we don’t want Your Lordships to give us those. But your Lordships can give us a redacted report which takes away those parts and the balance can be given to us. Many of us have given our phones and if they found malware, we are entitled to know…,” said Senior Advocate Kapil Sibal, appearing for one of the petitioners. In response, the CJI reiterated, “Let’s see what portions we can (release).” He added that they are not experts in the matter, and have thus appointed experts after receiving a lot of feedback
A counsel appearing for the petitioners remarked that national security should not be an overriding factor as the court examines the report. The CJI pointed out that even in the order for setting up the committee, the court had said, “A settled position of law that in matters pertaining to national security, the scope of judicial review is limited… This does not mean that the State gets a free pass every time the spectre of ‘national security’ is raised.”
BJP Asks Rahul Gandhi, Congress To Apologise
In light of the SC hearing and the expert committee not finding any conclusive proof of the use of Pegasus spyware, the Bharatiya Janata Party (BJP) has sought an apology from the opposition, following the claim that it was all a part of a “motivated campaign” aimed to weaken Prime Minister Narendra Modi.
BJP leader and former Union minister Ravi Shankar Prasad, while addressing a press conference, said that he wondered if Rahul Gandhi and the Congress would apologise since the committee could not find evidence of unauthorised use of Pegasus. Prasad reportedly said that opposition parties, so-called intellectuals, some NGOs, and a section of the media ran a sustained campaign against the government.
He went on to claim that the report exposed the disinformation campaign run by those who accused the government of using spyware to snoop on citizens. The BJP leader further alleged that the Congress has “so much animus” against PM Modi and his government “that it resorts to falsehood to expand the party”, but ends up shrinking as its lies are exposed. He cited Congress campaigns over the issue of Rafale aircraft purchase and the Central Vista project against the government, noting that the apex court found no irregularities in them as well.
“Will Rahul Gandhi and the Congress apologise,” he asked, as the opposition leader had accused the PM of treason, for allegedly surveilling his colleagues and opposition leaders. The PM was also accused of “crushing democracy”, and parliamentary proceedings were disrupted over the issue. Prasad went on to accuse the opposition parties of taking cover of PILs to move the court, after running a “motivated” campaign.
On the other hand, Congress MP Rahul Gandhi, subsequent to the SC hearing, took to Twitter and said, “PM and his government’s non-cooperation with the SC appointed committee is an acceptance that they had something deeper to hide and want to crush democracy.” Notably, Rahul Gandhi was also among those whose phones were allegedly being targeted by the Pegasus spyware.
Pegasus And The Central Government’s Stance
Pegasus is a spyware designed by an Israeli tech and cyber-arms firm, the NSO Group. The spyware compatible with both Android and iOS can covertly be used to read messages, collect passwords, track calls and locations, access the device’s camera and microphone, and gather information from several apps. Reportedly, the Israeli government has classified this as a cyber-arm, which can only be purchased by national governments after the former’s authorisation.
The Pegasus row erupted after an international consortium of 17 media outlets and investigative journalists reported on unsanctioned use of the Israeli spyware. Reportedly, a target list of 50,000 phone numbers was released, however, the presence of the phone number on the list never guaranteed the use of spyware.
The SC bench last year, on October 27, ordered a probe into the allegations of the use of Pegasus spyware, following several pleas filed in the apex court. This included senior journalists N Ram and Sashi Kumar, Rajya Sabha MP John Brittas of the Communist Marxist Party of India (Marxist), Advocate ML Sharma, and so on.
Speculations regarding the use of Pegasus in India reportedly emerged in July 2021. According to the leaked information, at least 300 numbers used by Indian citizens, including two ministers in the central government, three leaders from the opposition, few journalists, business persons, civil rights activists, and so on, may have been tracked using the spyware. However, following the Centre’s stance in August, the SC set up the committee in October, in order to investigate the procurement of the spyware by the Centre and the state governments, and ascertain details of the people targeted.