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Serial litigant ML Sharma demands SC-monitored SIT probe in his PIL on Pegasus spyware scandal

Supreme Court of India
Credit: Aditi Agrawal

Sharma’s PIL flags issues pertaining to the purchase and use of Pegasus spyware; meanwhile, other politicians and journalists are also moving the apex court for a judicial probe. 

Advocate Manohar Lal Sharma, known as a serial litigant among lawyers and reporters, has filed a public interest litigation (PIL)* in the Supreme Court praying for a Court-monitored probe by a Special Investigation Team (SIT) after it came to light that Pegasus had been used to snoop on (or in some cases potentially target) journalists, activists, politicians, businessmen, constitutional functionaries, among others.

It has not been confirmed as to who ordered the surveillance but the Pegasus spyware is developed by the Israeli firm NSO Group to be sold only to “vetted governments” and government agencies. A consortium of 17 media organisations gained access to a leaked list of potential targets for Pegasus surveillance consisting of more than 50,000 phone numbers all over the world. However, the presence of a number in the database does not mean that the person’s device was successfully targeted. 

Why does it matter? Out of the 50,000 phone numbers, The Wire has confirmed the names of 151 Indians who were potential targets for surveillance by clients of the NSO Group. The purported surveillance has been termed as a threat to constitutional democracy, and there have been several calls from various quarters of Indian polity for an independent investigation under the supervision of the Supreme Court of India. The demand was raised after the union government issued no clarification on whether it will conduct an investigation into the revelations. 

What does the PIL demand? 

According to the PIL (a copy of which MediaNama has seen), Sharma has tagged Prime Minister Narendra Modi, his ministers, and the Central Bureau of Investigation as respondents. 

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The PIL has been filed under Articles 32 and 21, as well as Articles 266(3), 267(2), and 283(2) of the Constitution of India.  It has also invoked Sections 65, 66, and 72 of The Information Technology Act, 2000, and Section 3 of the Official Secrets Act, 1923.

The PIL has flagged the following issues:

  • Whether Constitution allows Prime Minister and his ministers to snoop on citizens of India for their vested political interest? 
  • Whether buying Pegasus software without approval contra to the Art. 266(3), 267(2) and 283(2) does not attract S.408 & 409, 120-B of IPC? 
  • Whether snooping of common citizen of India, opposition leaders, judges of the judiciary and others do not attract an offence S.3 of the O.S. Act of 1923 as well as u/s 65, 66 & 72 of the Information Technology Act 2000 couple with Violation of Article 21?

Sharma claims that he filed the PIL after the government did not reply to questions about the purchase and use of Pegasus raised by opposition MPs in the Rajya Sabha. The petition added that the former IT Minister Ravi Shankar Prasad did not expressly deny whether the Indian Government had availed the services of NSO Group for using Pegasus spyware in 2019.

The plea goes on to add that India stands out in its use of Pegasus because “we are a part of a club of mostly authoritarian and semi-authoritarian states using this technology. It does not speak well of us as a democracy.” 

Why is ML Sharma the first in line to file PILs? 

Sharma, a self-proclaimed PIL enthusiast as per India Today, is known to rush to the Supreme Court and file PILs in relation to controversial incidents such as the Rafale deal, Article 370, and the Hyderabad police encounter, among others. 

According to a profile on Sharma in India Today, “his petitions are always poorly-drafted and lack substance or legal backing but that’s not what he is aiming for anyway. By virtue of being the first to file a petition in court on an issue making daily headlines, Sharma ensures his five minutes of fame and that’s what keeps him going.”

He was fined Rs 50,000 in December 2018, after he filed a petition to restrain Finance Minister Arun Jaitley from using the Reserve Bank of India’s capital reserves. The apex court criticised him for filing frivolous petitions and the sitting Chief Justice of India Ranjan Gogoi had commented that Sharma should be banned from filing PILs altogether. 

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Even in 2014, Sharma had been fined Rs 25,000 and Rs 50,000 by sitting CJI R.M. Lodha on two separate occasions.

Other PILs urging judicial probe into Pegasus controversy

  • Rajya Sabha MP John Brittas moved the Supreme Court on July 24 demanding a court-monitored probe into the Pegasus spyware scandal. Brittas reportedly said that he is concerned that widespread surveillance will have a chilling effect on free speech and expression.
  • Senior journalists N Ram and Sashi Kumar on July 27 approached the Supreme Court for an independent enquiry headed by a sitting or retired Supreme Court judge. They also want the central government to disclose if any of its agencies have obtained a license for Pegasus spyware and/or used it, either directly or indirectly, to conduct surveillance in any manner whatsoever.
  •  Rupesh Kumar Singh, a freelance journalist based in Jharkhand, is also planning to move the Supreme Court against the Centre for alleged breach of privacy, according to a report in The Telegraph. His phone number along with the numbers of his wife and wife’s sister features on the leaked list of potential targets. Singh informed the newspaper that he is waiting to see if any journalist group from Jharkhand will take up his cause.

*Disclaimer: Nikhil Pahwa, the founding editor of MediaNama, has been asked to assist with the drafting of petitions related to the Pegasus spyware scandal. 

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