The Supreme Court on Friday decided to take up next week a PIL seeking an independent probe by a sitting or a retired judge into the charges of spying by Israel spyware Pegasus on a number of journalists and opposition politicians.
The Supreme Court will hear the matter on August 5, 2021.
Chief Justice of India N.V. Ramana took note of the petition filed on July 27 by Director of Hindu Group of Publications, N. Ram and founder of Asianet, Sashi Kumar through Senior Advocate Kapil Sibal, seeking an urgent hearing into the “issue, which is making waves in India and the world over”.
Mr Sibal said, “The civil liberties of citizens, politicians belonging to opposition parties, journalists, court staff have been put under surveillance.
Besides Mr Ram and Mr Kumar, Rajya Sabha MP John Brittas and Advocate ML Sharma have also approached the top court, seeking inquiry into the surveillance scandal.
Pegasus software is a weapons grade spyware/surveillance tool manufactured by an Israeli cyber-arms firm NSO Group Technologies Limited (NSO Group). It is extremely advanced and capable of infecting a mobile phone/device without any interaction with the owner. It can conduct intrusive surveillance, including inter tracking and recording calls, reading text and WhatsApp messages. It can also be used to plant files on devices.
NSO claims that Pegasus is sold only to ‘vetted governments’ and not to private entities, though the company does not reveal which governments it sells the controversial product to.
The journalists, in their petition, sought directions to be issued to the Government of India to disclose if the Government of India or any of its agencies have obtained licence for Pegasus spyware or used it either directly or indirectly, to conduct surveillance as alleged.
“Mass surveillance using a military-grade spyware abridges several fundamental rights and appears to represent an attempt to infiltrate, attack and destabilise independent institutions that act as critical pillars of our democratic set-up,” said the plea.
The petitioners pointed out that the government has not categorically ruled out obtaining Pegasus licences to conduct surveillance in their response, and have taken no steps to ensure a credible and independent investigation into these extremely serious allegations.
They submitted that a forensic analysis of several mobile phones belonging to persons targeted for surveillance by the Security Lab of Amnesty International have confirmed Pegasus-induced security breaches.
“Such targeted surveillance using military-grade spyware is an unacceptable violation of the Right to Privacy, which has been held to be a fundamental right under Articles 14, 19 and 21 by the Supreme Court in KS Puttaswamy vs Union of India,” the petition stated.
The Right to Privacy extends to use and control over one’s mobile phone/electronic device and any interception by means of hacking/tapping is an infraction of Article 21, the plea added.
The plea placed reliance on news reports by The Wire and other international publications to raise the following issues:
– Has targeted surveillance been conducted on journalists, doctors, lawyers, opposition politicians, ministers, constitutional functionaries and civil society activists by illegally hacking into their phones using the Pegasus spyware?
– What are the implications of such a hack? Do they represent an attempt by agencies and organisations to muzzle and chill the exercise of free speech and expression of dissent in India?
Mr Brittas, in his plea, submitted that snooping, phone tapping, wiretapping and line bugging are the monitoring of the phone or the internet based conversations by a third party, which is a critical invasion into an individual’s privacy.
“This is in clear derogation of Article 21 of the Constitution unambiguously stating that no person shall be deprived of his life for personal liberty, except according to the procedure established by law,” his plea said.
The petition placed reliance on the statement by Union Minister for Electronics and Information Technology Ashwini Vaishnav in Parliament that there had been no unauthorised interception.
Any authorized snooping, the petition pointed out, can be done in India only by following the procedures of lawful interceptions mandated by the laws under the provisions of Section 5(2) of Indian Telegraph Act 1885, Section 69 of the Information Technology (Amendment) Act, 2000, Section 92 of CrPC and Rule 419(a) of the Indian Telegraph Rules.
“If the Government sticks on to the statement of the Hon’ble Minister for Electronics and IT-in the Parliament on 28th November 2019 that there had not been ‘no unauthorised interception,’ the current interception can only be considered as an authorized interception,” Mr Brittas submitted.