On Pegasus, SC Says 'Nothing Wrong' With Country Possessing Spyware, Question is Against Whom it is Used

New Delhi: The Supreme Court on Tuesday (April 29) made the oral observation that there is nothing inherently wrong with a country possessing spyware for security purposes; the real concern lies in against whom it is used.

A bench of Justices Surya Kant and N. Kotiswar Singh made the observations while hearing a batch of writ petitions that were filed in 2021 seeking an independent probe into allegations of targeted surveillance of journalists, activists and politicians by using the Israeli spyware Pegasus.

"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...,” said advocate Dinesh Dwivedi, who was representing some of the petitioners, reported LiveLaw.

Justice Kant interjected at this point of time and asked Dwivedi what is wrong with the country using a spyware such as Pegasus.

"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. A civil individual who has the right to privacy will be protected under the Constitution," said Justice Kant.

During the hearing, solicitor general of India Tushar Mehta said that “terrorists cannot claim privacy rights.”

Mehta also sought an adjournment saying that the matter had come up for hearing after a long time. Thereafter, Justice Kant asked that what survives of the matter.

"They have given a finding that India is one of the countries where there was a hack," said senior advocate Kapil Sibal, while citing the judgment of the US District Court, which held that NSO hacked WhatsApp using Pegasus malware. Sibal was appearing for journalist Paranjoy Guha Thakurta.

We have given a detailed judgment, constituted a committee (led by Justice Raveendran to probe the allegations). Now what survives?" said Justice Kant in response to Sibal.

Sibal said that when the court had constituted the committee in 2021, it did not have any clarity about whether the hacking actually took place, but the US judgment gives a factual clarity on the subject.

"That time your lordships had no indication whether hacking had taken place. Even experts didn't say so. Now you have evidence. Evidence by WhatsApp. We will circulate the (US) judgment. The redacted portion (of the report) should be given to the concerned individuals so they know," Sibal said.

Senior advocate Shyam Divan, who was appearing for another petitioner in the case also said that the report should be disclosed without any redaction but solicitor general Mehta objected, saying that portions affecting national security cannot be released.

Court says it will not allow disclosure of details relating to national security

Justice Kant said that the Court will not allow the disclosure of details relating to national security, but the portions relating to individuals can be disclosed.

Both Sibal and Divan said that the Supreme Court had in 2021 revealed the statement of the Committee that the Government of India did not cooperate with its investigation.

Justice Kant said that the report of the Committee is lying sealed and even he has not seen its contents.

"Mr Sibal seeks leave to circulate some documents. He may do so within two weeks. Post the matter on July 30,2025," said the court in its order.

In 2021, The Wire was among an international consortium of news outlets which had unveiled the use of Pegasus with the help of a leaked list of potential surveillance.

The NSO Group, as this consortium had reported then, says it only offers its spyware to “vetted governments”. During the 2021 news investigations, the company had refused to make its list of customers public.

The Supreme Court had in 2021 ordered an inquiry into these reported findings. A technical committee set up by it found malware in five phones but could not say if it was or was not Pegasus. The Indian government, when asked, refused to confirm or deny that it had acquired and used Pegasus, citing national security.

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