“What is Wrong If Country is Using Spyware Against Terrorists?” – SC on Pegasus

New Delhi: The Supreme Court on Tuesday questioned the rationale behind objecting to the use of the Israeli spyware Pegasus “against terrorists.” This observation came as a probe panel submitted its report on the alleged misuse of the spyware, clarifying that any findings related to national “security and sovereignty” would remain confidential and not be disclosed publicly.

A bench comprising Justice Surya Kant and Justice N Kotiswar Singh indicated that while individual concerns regarding privacy breaches might be addressed, the technical committee’s report was not a document for public debate. “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 bench stated.

The controversy surrounding the alleged use of Pegasus to surveil opposition leaders, journalists, and activists surfaced in 2021, prompting several individuals to petition the Supreme Court. Subsequently, the apex court ordered an investigation, establishing technical and supervisory committees to probe the matter and noting that it would assess the extent of the report’s public disclosure.

Advocate Dinesh Dwivedi, representing a petitioner, questioned whether the government possessed and used the spyware, adding, “If they have it, there is nothing to prevent them from using it continuously even today.” The bench responded by urging responsible submissions regarding individual disclosures and assuring that the extent of the report’s sharing would be considered.

The top court further elaborated, “What is wrong if the country is using the spyware against the terrorists? To have spyware is not wrong, against whom you are using is the question. You can’t compromise with the security of nation. Private civil individual who has right to privacy will be protected under the Constitution.”

Senior advocate Kapil Sibal, representing journalist Paranjoy Guha Thakurta, cited a US district court judgment where WhatsApp disclosed a hack. He argued that this constituted evidence, even if earlier experts hadn’t confirmed hacking, and requested the redacted portions of the report be shared with concerned individuals.

Solicitor General Tushar Mehta cautioned against a ‘roving enquiry’, asserting that deploying spyware like Pegasus against terrorists was not improper, as terrorists do not possess a right to privacy.

Conversely, senior advocate Shyam Divan, representing another petitioner, insisted on the full public disclosure of the technical committee’s report without any redactions.

The Supreme Court has scheduled the next hearing on this matter for July 30.

It may be recalled that on August 25, 2022, the technical panel appointed by the apex court found malware in five of the 29 examined cell phones but could not definitively conclude that Pegasus was used. Following the report submitted by former apex court Justice R V Raveendran, the court noted the Centre’s non-cooperation with the Pegasus probe, which was initiated in 2021 in response to allegations of government agencies using the Israeli spyware for targeted surveillance.