Pegasus: All about the recent Judgement by Supreme Court

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Pegasus: All about the recent Judgement by Supreme Court

Written By: Sreshta Satpathy

What is Pegasus?

It’s the title for what’s arguably the most potent piece of malware ever created – at a minimum by a private firm. This can convert your phone into a 24-hour monitoring device after it has wormed its way onto it without your knowledge. It has the ability to copy your messages, capture your photos, and record your phone calls. It might secretly video you with your phone’s camera or activate the microphone to record your conversations. It can keep track of your whereabouts, where you’ve been, and who you’ve met.

The Israeli business NSO Group develops, markets, and licences Pegasus hacking software – or spyware – to governments all around the world. It has the power to infect billions of smartphones running Ios or Android. Researchers identified the first version of Pegasus around 2016, and it infected phones via a technique known as spear-phishing, which involves sending text messages or emails that deceive a target into clicking on a malicious link.

How does it work?

Pegasus is spyware that snoops on cell phones. Even one single missed video call on Whatsapp, according to reports, might offer Pegasus complete access to customers’ handsets. It allows the operator to open up the phones and install spyware on the device without the owner’s knowledge or permission. The hacker gained access to the user’s data, including passwords, contacts, calendar events, text messages, and even live phone calls from the messaging app as a result of this.

What is the Pegasus case?

The Pegasus scandal arose on July 18 after the wire numerous other foreign sites published details regarding prospective targets of the spyware programme provided by NSO to various nations, including India. The list of targets includes 40 Indian journalists, as well as political leaders such as Rahul Gandhi, electoral strategist Prashant Kishore, and former ECI member Ashok Lavassa. Following that, several petitions were filed with the Supreme Court, requesting an impartial investigation into the incident.

The Supreme Court, on the other hand, has voiced concern over the purported occurrence, noting that if the claims are genuine, the allegations are severe. “The truth must be revealed; nevertheless, that is a different matter. We have no idea whose names are on the list “NV Ramana, the Chief Justice of India stated.

On October 27, 2021, the Supreme Court ordered an independent expert technical committee, chaired by Justice R.V. Raveendran, a former Supreme Court justice, to investigate allegations that the government utilised the Israeli spyware Pegasus to spy on its own population. The Committee was constituted to investigate the truth and untruth in the Pegasus row case.

The Supreme Court then appointed an expert technical committee to investigate the allegations that the Centre used Israeli software, Pegasus, to spy on citizens in the name of national security. The Supreme Court stressed that the state’s power to snoop into the “sacred private space” of individuals could not be absolute.

The Centre’s offer to appoint an expert committee to investigate the allegations was rejected by a three-judge bench led by Chief Justice of India N.V. Ramana because “such a course of action would violate the settled judicial principle against bias, namely, that ‘justice must not only be done but also be seen to be done.”The topic was relevant to national security, according to Solicitor General Tushar Mehta, and so could not be made the subject of a judicial debate or public conversation. He said that the government cannot tell if it has utilised any specific software for security purposes on affidavits because doing so would warn terror groups. Taking into account the gravity of the claims, the Centre has agreed to form a technical committee to investigate the matter, and the committee will present a report to the Court, according to the SG.

Senior Advocates Kapil Sibal, Shyam Divan, Meenakshi Arora, Rakesh Dwivedi, Dinesh Dwivedi, and CU Singh represented the petitioners, who argued that a committee appointed by the Centre could not be expected to work in an impartial as well as in a fairway. According to the NSO, the Israeli business that developed Pegasus only offers its services to governments, and the Indian government cannot be expected to conduct a fair investigation when it is under suspicion.

The Supreme Court has given the Central Government notice before admission in the batch of petitions on August 17th. Only because national security issues here are implicated, the Central Government has told the Supreme Court that it does not wish to file any new affidavits in the Pegasus case. The Centre also mentioned that it is willing to give the information to the expert committee that will be formed to investigate the issues.

The bench elaborated on the necessity to balance privacy concerns with the state’s security interests, saying that it “is conscious of the State’s interest in preserving life and liberty and must balance the same.” In today’s society, for instance, information which is obtained by intelligence services through monitoring is critical in the battle against terrorism and violence.

To gain access to this information, it may be required to infringe on an individual’s right to privacy, provided that this is done only when it is absolutely essential to safeguard national security/interest and is proportional. Evidence-based considerations should be used to the use of such purported technologies. Indiscriminate spying on individuals cannot be authorised in a democratic country governed by the rule of law unless proper statutory safeguards are in place and the procedure provided by law under the Constitution is followed.”

The Court stated in the verdict that indiscriminate spying on persons is not permitted unless it is done in line with the law. This is also a major problem for press freedom, which is a key foundation of democracy. The potential chilling effect on freedom of expression will have an impact on democracy. The Court stated that it had doubts regarding petitions filed based on newspaper stories at first.

However, due to the gravity of the situation, a notice was sent to the Union of India. Since 2019, this Court has given the Centre adequate time to disclose any facts related to the Pegasus assault. However, just a brief affidavit was filed, which provided no new information. While acknowledging that the Union of India has the power to withhold information when the national security will be at risk, the Court held that only because “national security” is mentioned does not make the Court a passive observer.

Conclusion

A fair expectation of privacy exists in a civilised democratic society. Journalists and social activists aren’t the only ones who care about privacy. Every Indian citizen should be safeguarded from invasions of their privacy. It is because of this assumption that we are able to exercise our freedom, liberty, and choices. In K.S. Puttaswamy (Privacy­9J.) v. Union of India, (2017) 10 SCC 1, the Supreme Court of India stated that the right to privacy is as sacred as human life and is inherent to human dignity and autonomy.

Despite being deemed inalienable, the right to privacy cannot be considered absolute because the Indian Constitution does not provide for such a right without acceptable limitations. As with all other fundamental rights, this Court must acknowledge that the right to privacy has some restrictions. Any constraints imposed, on the other hand, must pass constitutional muster.

The court stated that press freedom is an “essential pillar” of democracy and that the court’s role in the Pegasus case is particularly crucial in light of the importance of journalistic sources’ protection and the “possible chilling impact” such snooping techniques may have. The Supreme Court said that protecting journalistic sources is one of the basic conditions for press freedom and that without it; sources may be discouraged from assisting the media in informing the public on matters of public interest in a 46-page order issued on a batch of petitions seeking an independent investigation into the alleged Pegasus snooping case.

References:

Pegasus spyware case: Supreme Court appoints three-member probe panel available at https://www.indiatvnews.com/news/india/pegasus-spyware-case-hearing-supreme-court-judgement-latest-updates-742366

Full judgment  available at https://main.sci.gov.in/supremecourt/2021/16884/16884_2021_1_1501_30827_Judgement_27-Oct-2021.pdf

Full text: Supreme Court order on Pegasus snooping available at

https://indianexpress.com/article/india/sc-pegasus-order-judgment-full-text-7593039/

Pegasus issue: SC reserves verdict after Centre says it won’t file detailed affidavit available at https://www.indiatoday.in/india/story/pegasus-spyware-issue-supreme-court-centre-snooping-1852210-2021-09-13

What is Pegasus spyware and how does it hack phones? available at https://www.theguardian.com/news/2021/jul/18/what-is-pegasus-spyware-and-how-does-it-hack-phones

About the Author

Sreshta Satpathy

Sreshta Satpathy

Student at Adv. Balasaheb Apte college of Law , Mumbai 

I am 20 years old and I belong to Orissa. I’m currently a third-year student pursuing BLS LL.B from Mumbai University. I intend to pursue corporate law in the future.

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