The Return of Pegasus

Back in 2021, when the commotion over allegations that the Indian government had used a spyware, Pegasus, to snoop on individuals, including political rivals, journalists, and others, broke out, the Supreme Court formed a panel headed by a former Supreme Court judge (Justice Raveendran) to probe the matter. The Centre had refused to disclose whether it had used the spyware raising the bogey of national security, but the Court had rejected the argument, saying a mere invocation of national security cannot give the state a free pass.

Four years from then, we still don’t know what the committee found. The findings were never revealed since the committee submitted a sealed cover report. All that was revealed was that the government did not cooperate with the investigation, and that the committee had found malware in five out of the 29 devices that were submitted for inspection. It is unclear if the malware found was Pegasus, because it appeared the committee never investigated the origin or nature of the malware.

So many years since, the issue of Pegasus returned to the court today. A number of writ petitions seeking an independent probe into the allegations of targeted surveillance using Pegasus came before a bench comprising Justices Surya Kant and N Kotiswar Singh. “We have given a detailed judgment, constituted a committee. Now what survives?” Justice Surya Kant was reported as asking by media outlets. What had developed was a US court ruling holding Pegasus’ creators, the Israeli company NSO Group, accountable for its spyware in a lawsuit brought by WhatsApp, a few months ago. Whatsapp had claimed in its lawsuit that it had found 1,223 individuals targeted by the malware across the globe, and given a country wise breakdown of this list. India ranked second after Mexico (456 individuals targeted) with 100 individuals.

The Supreme Court allowed the petitioners to place on record the judgment by the US court on WhatsApp’s case against NSO Group, adjourning the hearing till July 30, 2025. But an exchange between the petitioners and the bench also led to an interesting observation on whether just the use of spyware by the government – the government had so far refused to clarify whether it used or did not use the spyware – could be deemed illegal. According to the court, the government was well within its rights to possess spyware for security purposes.

One of the lawyers representing some petitioners, Dinesh Dwivedi, had 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…” Dwivedi was reported as telling, when Justice Kant interjected. “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,” Justice Kant said, adding that “a civil individual who has the right to privacy will be protected under the Constitution.”

Interestingly, some of the petitioners’ lawyers sought for making the sealed cover report of the Justice Raveendran Committee available to affected individuals. Kapil Sibal, who is representing some of the petitioners, wanted the report to made available with portions that might be sensitive redacted, while another advocate, Shyam Divan, representing another petitioner, requested for the report without redaction.

Solicitor General Tushar Mehta objected to this request, saying that portions affecting national security cannot be disclosed, which Justice Kant agreed with, clarifying that the court will not allow the disclosure of details relating to national security. But the portions relating to individuals, he said, can be disclosed.

So many years later, Pegasus is returning to our headlines once again.

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