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Pegasus: Journalist Paranjoy Guha Thakurta files petition in Supreme Court urging it to outlaw spyware use

Since the Pegasus exposé, four other petitions have been filed before the apex court with a majority of them seeking an independent SIT investigation into the matter.

Declare that the installation and/or use of spyware such as Pegasus is illegal and unconstitutional and is ultra vires Part III of the Constitution,” read one of the prayers in a writ petition* submitted to the Supreme Court of India by Paranjoy Guha Thakurta, one of the 40 Indian journalists featured in the leaked list of potential targets for Pegasus surveillance. 

Filed under Article 32 of the Indian Constitution against the Ministry of Electronics and Information Technology and the Ministry of Home Affairs, the petition (a copy of which MediaNama has seen) also prays for an order directing the central government to disclose all documents on the use of Pegasus and establish a judicial oversight mechanism to deal with complaints on illegal breaches of privacy.

Thakurta’s petition was clubbed with two other petitions filed on behalf of four journalists—S.N.M. Abdi, Prem Shankar Jha, Rupesh Kumar Singh, and Ipsa Shataksi— who also featured on the leaked list.  All three petitions will be heard together. 

Why it matters? The Pegasus Project is an investigation carried out by a consortium of 17 news organisations that accessed a leaked list of more than 50,000 phone numbers believed to be potential surveillance targets of Pegasus spyware developed by the Israeli company NSO Group. The list suggests that journalists, politicians, activists, businessmen, and bureaucrats across 11 countries including India were probable targets of the spyware. The Pegasus revelations violate the sanctity of freedoms of speech and expression under Article 19 of the Indian constitution. The purported surveillance is also believed to be a violation of privacy which has been declared a fundamental right by the Supreme Court. 

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Details of the petition

The petition said that Thakurta was contacted by a Chennai-based investigative journalist on March 17, 2021, representing a France-based, non-profit organisation called Forbidden Stories. Thakurta was informed that his name had appeared in a list of journalists whose phones could have been spied upon using Pegasus, the petition added.

“The entire incident has psychologically traumatised the petitioner and left him constantly wondering whether he is being surveilled through his mobile phone, laptop computer, or even in real life. Such illegal hacking has severely impeded and undermined the petitioner’s practice of his profession of journalism, because he is constantly unsure of whether his conversations with sources and publishers are being monitored, and whether there is a threat to the life and physical safety, not just of himself, but his family members, and those that the petitioner regularly contacts in the scope of his work,” reads Thakurta’s petition filed on July 30.  

It said that the petitioner was “deeply concerned that the hacking and infiltration of his phone through the Pegasus malware will have the effect of endangering his confidential sources and/or making vulnerable to vindictive action by third parties against whose interests they acted.”

The petition said that the government “…failed to provide an adequate response and has not categorically denied its involvement in illegal surveillance. The statement did not categorically deny, or admit to, the Government’s involvement in the illegal surveillance and hacking and instead labelled the revelations as ‘malicious’, based on ‘conjectures and exaggerations’.” 

What are the grounds on which the petition is challenging the government?

According to the petition, the incident violates several sections of the IT Act, 2000, and articles under the Indian Constitution. The petition affirms that: 

  • The hacking violates Section 43(a), 43(b), 43(c) and 43(d) of the IT Act, as it involves accessing a computer by introducing a ‘contaminant’ or ‘virus’; damaging the device and extracting data without the permission of the owner of the device. 
  • The use of Pegasus violates Section 66B of the IT Act, which punishes dishonest receiving of stolen computer resources since ‘data’ is included in the definition of ‘computer resources’ under Section 2(k) of the IT Act.
  • The Pegasus use also violates Section 72 of the IT Act, which imposes a penalty for breach of confidentiality and privacy, against any person who has secured access to any electronic record, book, register, correspondence, information, document, or other material without the consent of the person concerned and discloses them to others.
  • The hacking cannot be classified as a form of legitimate or authorised surveillance permitted under Section 69 of the IT Act or even Section 5 of the Telegraph Act as it goes much beyond the mere interception, monitoring, or decryption of messages. 
  • The state-sponsored illegal hacking constitutes a violation of his (the petitioner) fundamental rights under Articles 19 and 21 of the Constitution. 
  • Constant surveillance upon journalists and reporters violates the right of journalistic freedom under Article 19(1)(a) and impinges upon the freedom that the press needs in order to provide impartial and unbiased coverage.

Other petitions filed in the Supreme Court

This is not the first petition filed in the Supreme Court as four other petitions have been filed by various parties. They are as follows: 

  • Advocate ML Sharma, who is known to rush to the SC in several high-profile cases, filed the first PIL which flagged issues surrounding the purchase of Pegasus and demanded an SIT probe monitored by the Court. 
  • Rajya Sabha MP from Communist Party of India (Marxist) John Brittas filed the second PIL urging the Court to conduct an immediate SIT investigation that is supervised by the Court as the government was stonewalling in setting up an investigation.
  • News editors N Ram and Sashi Kumar filed the third PIL urging the Court to force the government to acknowledge the purchase of Pegasus in addition to calling for a judicial investigation.
  • The Editors Guild of India (EGI) filed the fourth PIL which seeks a court-monitored SIT probe into reports of state surveillance of journalists, activists, and politicians using Pegasus. It urges the Court to issue directions to the central government to produce details of contracts with foreign companies for deploying the Pegasus spyware and the people against whom such spyware was used.

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

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