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All surveillance mechanisms must be brought under judicial oversight: SFLC’s Pegasus petition

Among several others, SFLC’s petition is the only one with a broadened scope to target the current surveillance apparatus.

“This petition is not merely about NSO and Pegasus but a challenge to India’s communications surveillance mechanism that stands in contrast with the other democracies of the world for lack of any judicial or parliamentary oversight,” read a writ petition filed by Degree Prasad Chouhan and Software Freedom Law Centre (SFLC) in the Supreme Court of India in August 2021.”India is the only democracy where communications surveillance continues to be the exclusive domain of the executive arm of the government with no provisions for judicial oversight,” the petition added.

The petition, a copy of which has been reviewed by MediaNama, draws attention to the fact that the Indian government is adopting technologies like facial recognition at a time when other democracies are announcing moratoriums on it. It added that these technologies are being used to stifle political dissent and violate the human rights of Indian citizens.

The respondents in the petition are the Union government, the Ministry for Electronics and Information Technology, CERT-In (Indian Computer Emergency Response Team), and all Indian state governments and union territories. 

Background: An investigation called The Pegasus Project, by 17 news organisations led by Forbidden Stories, accessed a data leak that revealed more than 50,000 phone numbers as either targets or potential targets of surveillance by several government clients. Out of 50,000, nearly 300 phone numbers belonged to Indian citizens engaged in journalism, activism, politics, business, etc. 

The revelations brought to light by the Pegasus Project could have serious ramifications on the sanctity of fundamental rights such as the right to privacy. The Indian government has evaded questions on the purchase and use of Pegasus whenever it has been asked to respond in Parliament. Moreover, the government has not ordered an investigation into the matter even though countries like France have moved swiftly to investigate the matter. 

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Prayers of the petition

The petition urges the Supreme Court to issue the following orders:

  • Direct the Union government, State governments, public bodies and authorities to not deal with NSO and to discontinue all dealings with NSO, translating into a ban for NSO in India.
  • Prohibit all governments, Union and state, public bodies and authorities from outsourcing any surveillance activity to the private sector.
  • Instruct the Centre to stop all surveillance activity conducted by private parties in India.
  • Establish a judicial oversight mechanism for issuance of any surveillance order under the existing monitoring framework within the Telegraph Act, 1885 and the Information Technology Act, 2000 by designating Courts for approval of interception/monitoring orders.
  • Ensure that surveillance orders comply with the principles of necessity and proportionality and after exhausting other less intrusive alternatives.
  • Conduct a periodic human rights impact assessment in respect of all surveillance mechanisms introduced by the government.
  • Provide transparency in surveillance orders in the form of oversight and access to records by a parliamentary committee.
  • Notify the subject of surveillance after completion of the period of surveillance.
  • Order an investigation monitored by the SC on the use of the Pegasus spyware upon surveillance of Indian citizens by officers independent of the Central government.
  • Strike down Rule 419A of the Indian Telegraph Rules, 1951, and Section 69 of the Information Technology Act, 2000, as unconstitutional, void and violative of Articles 14, 19 and 21 of the Constitution of India.
  • Declare provisions of Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, as unconstitutional and violative of Articles 14, 19 and 21 of the Constitution of India.
  • Order all governments to make the details of their dealings with NSO Group public as per the following guidelines:
  1. Whether the Indian government or state governments had any arrangement with NSO Group for the purchase or use of the Pegasus spyware 
  2. Cost of purchasing the Pegasus spyware and using it to spy per mobile device.
  3. Information about Indian citizens that was provided to the NSO group
  4. Framework between the Government of India and the NSO Group for keeping the data of Indian citizens who were subject to spying.
  5. Involvement of any third party in the arrangement between Government of India and the NSO group.
  6. Number of people and mobile devices which were sought to be targeted under the arrangement.
  7. Details of the dispute resolution mechanism and the jurisdiction.
  8. Details of investigation conducted by the Indian government on the WhatsApp vulnerability misused by the NSO group. 

What are the grounds on which the petition challenges the Indian government? 

Violation of International Law Obligations: “The right to privacy is recognised as a basic human right under Article 12 of the Universal Declaration of Human Rights Act”, the petition said. It also refers to Article 17 of the International Covenant on Civil and Political Rights Act, 1966, to which India is a party, and the protection offered to right to privacy under it. “…the Indian government has negated its responsibility under the ICCPR,” read the complaint. It also highlighted that the United Nations General Assembly, in a resolution, emphasises that surveillance of digital communications needs to be consistent with international human rights obligations and must be conducted on the basis of a legal framework.

Need for framing of Guidelines: The petition said: “…the current legal framework such as Rule 419A of the Telegraph Rules, 1951, and the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, is modelled on the People’s Union for Civil Liberties (PUCL) guidelines framed by the Supreme Court. The framework has similar procedures for issuance of monitoring orders and for reviewing these orders which is grossly inadequate”. It said that the judgement was passed when landline telephones were in use but the framework needs an overhaul as a mobile phone is more common these days and is carried by citizens throughout the day.

Inadequacy of the current surveillance framework: “…the current surveillance framework lacks requisite safeguards for protection against surveillance,” the petition said. “The surveillance by Pegasus is beyond the existing framework of lawful and interception monitoring under the Telegraph Act, 1885, and the IT Act, 2000, and the accompanying rules[…] The victim of unlawful surveillance has no recourse or remedy under the law to seek corrective action or demand compensation for the loss or injury suffered,” adding that the Data Protection Bill exempts the government or any of its agencies to adhere to the statutes laid down under the bill. 

Lack of judicial oversight: “The current process entails the executive keeping a check on the executive”. The petition says that the United Nations and its Human Rights Committee have stressed upon the importance of judicial oversight so as to ensure transparency, and quotes the International Principles on the Application of Human Rights to Communications Surveillance: “Determinations related to Communications Surveillance must be made by a competent judicial authority that is impartial and independent.” 

Unchecked growth of private surveillance companies: “There are a lot of private surveillance companies operating in India because they operate in a regulatory grey area with no transparency or accountability,” the petition said, adding that there is no clarity on whether these companies are required to conduct due diligence or human rights assessment before selling surveillance technologies to law enforcement agencies. “The guarded nature of these companies rule out oversight,” which raises cause for concern. 

Disregard for the Rule of Law and the democratic processes: The petition said: “…the government has not given a clear response on an issue with serious consequences on the sustainability and legitimacy of our democratic structure. The government’s silence, even in the Parliament, raises further suspicion and insecurity among citizens.” It accused “the government of breaking protocol when members of the Parliamentary Committee on IT, did not participate in a meeting with a malicious intent that their absence will not meet the quorum due to which the meeting could not be held then”.

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Need for a court-monitored investigation: The petition demands that the Supreme Court has laid down several precedents in which a Special investigation Team (SIT) was constituted such as Ram Jethmalani and Others vs. Union of India, Romila Thapar and Others vs. Union of India and Others, among others. It quoted Justice DY Chandrachud who said that the jurisdiction of this Court has evolved under Article 32 to order the constitution of an SIT.  The petition argued that “an investigation into an issue cannot be unbiased and fair if the Central Government and its agencies are under the shadow of suspicion” so SC should call for an independent investigation and monitor it. 

Violation of Right to Freedom of Trade and Profession: It said that one of the pre-requisites for “a journalist to do their job well is to have anonymity”. According to the petition, it is essential for journalists to know on a daily basis that their communication is not being snooped upon given the prevailing threats such as sedition and FIRs. The use of spyware violates the right to freedom of trade and profession under Article 19(1)(g) of the constitution of India “by creating an unwarranted sense of fear and a chilling effect.”

Right to Privacy: The petition accuses the Centre of failing to meet the requirements laid down by the Supreme Court in the case of K.S. Puttaswamy vs. Union of India to secure citizen’s fundamental right to privacy. It added that the right to privacy is essential to human dignity, and it reinforces other constitutional rights such as the right to free speech and the right to freedom of association etc. It also said that the right to privacy is an integral part of the right to life.

Violation of the Right to Freedom of Speech and Expression: The petition argues that Pegasus spyware adopts an invasive technique for snooping on citizens under the garb of national security and public order. “The use of surveillance has a chilling effect on free speech, leading people to be cautious of their speech, especially speech that is critical of the establishment,” read the petition. 

Overbroad powers for monitoring: The petitioners contend that Section 69 of the Information Technology Act, 2000, provides governments the power to issue directions for interception or monitoring or decryption of any information through any computer resource for the investigation of any offence. This is in stark contrast with Section 5(2) of the Telegraph Act where an order for telephone tapping can be issued only on the occurrence of any public emergency. Orders under this Section will have a greater impact than a telephone tapping order. 

Violation of Article 14: The petitioners call the intrusion into citizen’s private and personal communications, “an unreasonable and arbitrary act on part of the government” which is not in accordance with Article 14 and does not satisfy the requirement of Article 21 which calls for the act to be “right and just and fair”. 

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Procedural Impropriety: The petition charges that the government inadvertently or with the involvement of some of its functionaries, was not able to safeguard citizens against illegal and unconstitutional intrusion into their right to privacy thereby not following the procedure prescribed under a statute rendering the action as arbitrary because there is no procedure laid down under any law in India that legitimizes or allows the use of invasive surveillance spyware like Pegasus.

Who else has filed petitions on Pegasus?

The petition by SFLC is among several petitions being heard by the SC on the Pegasus matter. The SFLC petition, however, is the only one with a broadened scope to target the surveillance apparatus currently present in the country. Here is a list of other petitions:

  • 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.
  • Journalists Rupesh Kumar Singh and Ipsa Shatakshi’s writ petition also calls into question the constitutionality of surveillance aided by the Pegasus spyware. The petition demands a judicial oversight mechanism to deal with complaints of privacy breaches arising in the future.
  • 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.

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