New Delhi: The Supreme Court has observed that there is nothing inherently wrong with a country possessing spyware for security purposes. The real concern lies in against whom it is used, the bench of Justice Surya Kant and Justice N Kotiswar Singh held.
The Court was considering a batch of petitions filed in 2021, seeking an independent probe into the allegations of targeted surveillance of journalists, activists and politicians using the Israeli spyware Pegasus.
After senior advocate Dinesh Dwivedi told the court that the basic issue in the case was whether the Government of India had the Pegasus spyware and was using it, Justice Kant said: “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.”
After solicitor general Tushar Mehta said that “Terrorists cannot claim privacy rights”, Justice Kant said: “A civil individual who has the right to privacy will be protected under the Constitution.”
The bench then adjourned the hearing till July 30, 2025, allowing the petitioners to place on record a judgment by an US court in a case filed by WhatsApp against Pegasus.
After Justice Kant asked: “What survives in this matter,” senior advocate Kapil Sibal cited the judgement of the US district court that held that NSO had hacked WhatsApp using Pegasus malware.
“They have given a finding that India is one of the countries where there was a hack,” Sibal said.
Justice Kant repeated his question though. “We have given a detailed judgment, constituted a committee (led by Justice Raveendran to probe the allegations). Now what survives,” he asked.
Sibal requested the bench to order the release of the report of the Justice Raveendran Committee to the affected individuals, redacting portions which might be sensitive. Senior advocate Shyam Divan backed Sibal and said that the report should be disclosed without any redaction. Mehta objected, saying that portions affecting national security cannot be disclosed.
Justice Kant also clarified that the Court will not allow the disclosure of details relating to national security, but the portions relating to individuals can be disclosed.
