What's wrong if a country is using spyware against terrorists? Apex Court on Pegasus

PTI, NEW DELHI, APRIL 29, 2025 : The Supreme Court on Tuesday wondered what was wrong in using the "spyware against terrorists" and said any report which touched upon the country's "security and sovereignty" won't be made public. A bench of Justice Surya Kant and Justice N Kotiswar Singh indicated it may address individual apprehensions of privacy breach, but the report of the technical committee was no document to discuss "on the streets."

The bench said: "Any report which touches the security and sovereignty of the country will not be touched. But individuals who want to know whether they are included, that can be informed. Yes, individual apprehension must be addressed, but it cannot be made a document for discussion on the streets." The apex court added it will examine the extent to which the technical panel report could be shared in public.

Advocate Dinesh Dwivedi, appearing for one of the petitioners, said the question was whether the government had the spyware and used it. "If they have it, there is nothing to prevent them from using it continuously even today," he added.

The bench responded: "Please make submissions with regard to disclosure regarding individuals. The kind of scenario we are facing nowadays, let us be slightly responsible... We will see to what extent the report can be shared." The apex court went on: "What is wrong if the country is using the spyware against the terrorists? To have spyware is not wrong, against whom you are using it is the question. You can't compromise with the security of the nation. Private civil individuals who have the right to privacy will be protected under the Constitution," the bench said.

Senior advocate Kapil Sibal, appearing for journalist Paranjoy Guha Thakurta, referred to a US district court judgment. "WhatsApp itself has disclosed here. Not a third party. WhatsApp itself has disclosed that there was a hack. That time your lordships had not indicated whether hacking took place. Even experts didn't say so. Now you have evidence. Evidence by WhatsApp. We will circulate the judgment. The redacted portion should be given to concerned individuals so they know," Sibal said.

Solicitor General Tushar Mehta, however, suggested against any "roving inquiry." There was nothing wrong, Mehta said, in using the spyware against terrorists, and they cannot have a right to privacy.

Senior advocate Shyam Divan, for one of the petitioners, said the report of the technical committee should be disclosed without any redaction. The apex court then posted the hearing on July 30.

On August 25, 2022, the technical panel appointed by the Supreme Court to probe the unauthorized use of Pegasus found malware in five of the 29 examined cell phones, but it couldn't conclude that Pegasus was used. Following the report by former apex court Justice R.V. Raveendran, the apex court recorded that the Centre did not cooperate with the Pegasus probe. The Supreme Court ordered the probe in 2021 into the allegations of the use of the Israeli spyware by government agencies for targeted surveillance of politicians, journalists, and activists and appointed technical and supervisory committees to examine the matter.