NEW DELHI: The Supreme Court on Tuesday said there was "nothing wrong" in using spyware as long as it was for the security of the nation, but made it clear that citizens' right to privacy is protected under the Constitution.
Considering a bunch of petitions challenging the alleged use of the Israeli software Pegasus by the Union government, a bench of Justices Surya Kant and N Kotiswar Singh said that the court would not disclose any report that touches the security and sovereignty of the country, but indicated that it may address individual apprehensions of privacy breach.
Supreme Court Affirms Pegasus Can Be Used Against Threats Without Violating Privacy Rights
Senior Advocate Dinesh Dwivedi, for a petitioner, said that the basic issue was whether the government used this spyware and whether they have purchased it.
If the government has it, then nothing prevents it from using the spyware further, he submitted.
“What is wrong if the country is using that spyware against (the anti-national elements). To have the spyware is not wrong; against whom it is used, that is the question. We cannot compromise and sacrifice the security of the nation. However, private individuals' right to privacy is protected under the Constitution," the bench said.
Solicitor General Tushar Mehta, representing the Centre, also asked what was wrong if the government was using it against the terrorists.
At the outset, the bench asked the counsel as to what survived in the matter.
Senior advocate Kapil Sibal for a petitioner sought to cite a judgment of the US district court.
He said, “they found that India was a country where it was hacked and WhatsApp has confirmed it”.
The bench said it was relevant at the beginning of the case, and now the court has already examined the aspect, issued a detailed judgment, and constituted a committee headed by former judge Justice R V Raveendran, and its report has been received.
“Balancing the state’s right of surveillance and at the same time the right of privacy of individuals, we passed the judgment and obtained a report,” the bench said.
Sibal asked the bench to at least look at the US court judgment, and the redacted portion of the report must be given to the individuals concerned.
Senior advocate Shyam Divan, also for the petitioner said that his client had placed on record, through an affidavit before the committee, how the phones were hacked.
“The state has used spyware against its own citizenry and it is established from the record. This is a very serious situation," Divan said.
He contended that it is not an allegation and he can show it with substantial proof through expert evidence on record.
Court Balances National Security and Right to Privacy in Pegasus Spyware Case
The bench said this may be an allegation. Divan said the committee report must be released to his client, some portions can be redacted, but the report should be available. “There is an open court system over here," he said.
The bench said it can think of disclosing the report to an individual, as the apprehension must be adequately responded to, and agreed to examine the US court judgment.
The court fixed the matter for hearing on July 30, 2025.
It allowed the petitioners to place on record a judgment pronounced by a US court in a case filed by WhatsApp against Pegasus.
The panel headed by retired Supreme Court judge R V Raveendran had submitted its report in the apex court in July, 2022 in pleas filed in 2021.
The court had then noted that the court-appointed Pegasus inquiry panel in its report said that there was no conclusive proof of the use of Israeli spyware in 29 mobile phones examined by it but the government of India did not cooperate in the probe.
The panel also found that five out of 29 mobile phones were possibly infected with some malware, but that did not mean it was Pegasus.
