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Pegasus petition in SC by journalists Rupesh Singh and Ipsa Shatakshi calls for judicial oversight mechanism

Supreme Court of India
Credit: Aditi Agrawal

This is one of many petitions related to Pegasus that has been filed before the Supreme Court of India which has scheduled the next hearing on August 16. 

A writ petition by journalists Rupesh Kumar Singh and Ipsa Shatakshi called into question the constitutionality of surveillance aided by the Pegasus spyware. The petition, a copy of which MediaNama has seen, filed in the Supreme Court of India on July 31 prays for a judicial oversight mechanism to deal with complaints of privacy breaches arising in the future. 

Background: The Pegasus Project is a collaborative effort by 17 news organisations led by Forbidden Stories and Amnesty International. Their investigation accessed a data leak that revealed more than 50,000 phone numbers as either targets or potential targets of snooping by several governments. NSO Group, the developer behind Pegasus, clarified that the spyware is sold to governments and its agencies for use against terrorists and criminals. However, out of 50,000 numbers, nearly 300 belonged to Indian citizens engaged in journalism, activism, politics, business, etc. Phone numbers of both Singh and Shatakshi feature on the leaked list as potential targets of snooping, and they are represented in the case by advocate Prateek Chaddha. 

Why it matters? The revelations brought to light by the Pegasus Project have serious ramifications on the sanctity of fundamental rights such as freedoms of speech and expression. 

The petition’s prayers

The petitioners demanded that the Supreme Court of India issue the following directions for the Union government: 

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  • Declare installation and/or use of malware or spyware such as Pegasus illegal and unconstitutional, and ultra vires Part III of the Indian Constitution. 
  • Disclose materials and documents regarding an investigation, and orders pertaining to the use of  Pegasus before the SC and the petitioners. 
  • Undertake steps to protect Indian citizens from the use of cyberweapons/malware such as Pegasus.
  • Put in place a judicial oversight mechanism to deal with any complaints on illegal breaches of privacy and hacking
  • Punish all government officials responsible for such breaches.

The grounds on which the petition was filed

The petitioners are challenging the government on grounds that: 

  • Hacking a smartphone using military-grade technology such as Pegasus is “ex facie illegal and violates
    Section 43(a), 43(b), 43(c) and 43(d) of the IT Act, 2000.”
  • Use of Pegasus violates Section 66B of the IT Act, which punishes receiving stolen computer resources dishonestly. 
  • The use of Pegasus also contravenes Section 72 of the IT Act, which imposes a penalty for breach of confidentiality and privacy on anyone who accesses electronic materials without the consent of the person who own the materials. 
  • Hacking through Pegasus cannot be classified as legitimate or authorised surveillance permitted under Section 69 of the IT Act or even Section 5 of the Telegraph Act, 1885
  • Pegasus contributes to the subversion of the Whistle Blowers Protection Act, 2014
  • Deployment of spyware to hack computers and computer systems bear connection with the Central government as the NSO Group has confirmed that they only provide the military-grade spyware to governments.
  • The government must furnish information to identify the source of illegal executive action (hacking) by public servants with an investigation by the government because it has failed to unequivocally refuse assertions that it had dealings with the NSO Group. 
  • State-sponsored illegal hacking of petitioners’ smartphones are an ex facie violation of their fundamental rights under Articles 19 and 21 of the Indian Constitution.
  • Concentrated and centralised State power creates a chilling effect and impedes citizens to think freely. This induces a change in behaviour which is in violation of Article 21 of the Constitution. 
  • The hacking under Pegasus is grossly in contravention of the privacy principles that have been endorsed in Puttaswamy (I) & Puttaswamy (II) as it lacks any sense of accountability or transparency. 
  • It infringes press and journalistic freedom as constant surveillance of activists and journalists impinges that right under Article 19(1)(a). “The surveillance using Pegasus is used as a tool to gag, silence and suppress independent reporting and activism,” the petition stated. 
  • The snooping leaves sources who provide information to journalists vulnerable to retribution from the State.  
  • The use of Pegasus leaves affected individuals without legal recourse on account of a lack of a data protection law in India.

A round-up of petitions before the SC

  • Advocate ML Sharma was the first person to file a petition before the SC demanding a probe by the Special Investigation Team (SIT) monitored by the Court. The petition also asked for the government to reveal details on the purchase and use of the Pegasus spyware.
  • Rajya Sabha MP John Brittas from the Communist Party of India (Marxist) filed another PIL requesting the apex court to order an SIT probe. 
  • Senior journalists N Ram and Sashi Kumar submitted in their petition that the government must acknowledge categorically whether the state ordered the purchase of Pegasus. They also called for a judicial probe into the matter.
  • The Editors Guild Of India’s petition calls for an SC-monitored probe while demanding that the government produce orders which authorise interception via Pegasus along with the reasons, and furnish information on Pegasus-aided monitoring and hacking in India between 2017 and 2021.
  • Senior journalist Paranjoy Guha Thakurta requested the SC to outlaw the use of spyware, including Pegasus, in India and direct the government to disclose all documents on the use of Pegasus. His petition was also filed by Prateek Chaddha.
  • Two more journalists S.N.M. Abdi and Prem Shankar Jha have filed a petition which calls for an SIT probe monitored by the SC. They are represented by lawyer Prateek Chaddha who is also appearing for Paranjoy Guha Thakurta, Rupesh Singh, and Ipsa Shatakshi.
  • ADR Co-founder Jagdeep Chhokar’s petition* urges the SC to direct the government to initiate criminal prosecution of government officials responsible for the surveillance and restrict future use of spyware to monitor communications of Indian citizens.
  • Civil rights activist Narendra Mishra has also approached the Court with a petition urging the Court to intervene in the Pegasus surveillance matter.

*Disclaimer: Jagdeep Chhokar is related to Nikhil Pahwa, the founding editor of MediaNama.

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