Pegasus Spyware scandal

Will the Pegasus case be another ‘tryst with destiny’ for India?

Print edition : August 27, 2021

Justice H.R. Khanna, the lone dissenter in the A.D.M Jabalpur case in 1976.

Justice K.S. Puttaswamy, whose petition in the Supreme Court in 2017 led to a landmark judgment that upheld the fundamental right to privacy under Article 21 of the Indian Constitution. Photo: SOMASHEKARA GRN

Justice D.Y. Chandrachud, who, as part of the nine-judge bench that delivered the verdict in the Puttaswamy case, said: “privacy is the constitutional core of human dignity.” Photo: SANDEEP SAXENA

The Pegasus case poses an unprecedented challenge to India, hinting as it does at the emergence of a surveillance state across countries in furtherance to a global conspiracy that has scant regard for democracies or institutions elsewhere. The future will depend upon how the nation and its institutions respond to it.

The appointment of the Justice Lokur Commission by the West Bengal government has been the most sensible and pragmatic move in the Pegasus episode in India so far. As of August 5, the Supreme Court of India had heard the initial submissions on behalf of the petitioners in the slew of litigations seeking a probe into the shocking surveillance. The Chief Justice said that the allegations were serious. The Court asked why the registration of first information reports (FIRs) had not been sought for at the individual level, that is, at the instance of the complainants. In a case of targeted surveillance, where revelations from credible sources have come out only recently, the request for the apex court taking judicial cognisance of the issue is quite sensible and legitimate. It is much more than a class action.

Given the fact that the political executive is taking a posture of egregious silence and that no debate on the issue has been permitted on the floor of both Houses of Parliament, the court may have to carry out its function of scanning the issue judicially, with reference to the various legal, constitutional, and political issues highlighted in the petitions.

Threat to democracy

According to reports, it is not merely the leaders of the formal opposition or those who are part of government institutions in India who have been allegedly targeted by the Pegasus spyware. Several public intellectuals and activists, too, are in the list. This has happened at a time when many dissidents of the regime have been labelled “anti-nationals” and put in prison for indefinite periods. They were denied bail principally on account of the terrorist/anti-national tag which the government foisted on them.

The irony is that the Pegasus allegations essentially point to the anti-national posture taken by the government and those who run it. The attempts made by them to hush up the episode has only aggravated concerns. As Arundhati Roy put it, “there has to be something treasonous about a foreign corporation servicing and maintaining a spy network that is monitoring a country’s private citizens on behalf of that country’s government” (The Wire, July 27, 2021). The total lack of moral authority of a regime that invoked draconian legal provisions in order to witch-hunt its citizens by questioning their patriotism, is now clearly under the scanner at a very foundational level.

Also read: Surveillance state: The Pegasus saga unravels in India

It is on record that the NSO group of Israel said that it sells the software technology “solely to law enforcement and intelligence agencies of vetted governments” (The Hindu, July 20, 2021). Therefore, there is a formal and institutional character to the deal. The role of private players will also be serious, though it might be under the garb of the instrumentalities of the state. Given the very nature of the alleged hacking, the individuals involved can only be those at the helm of affairs in one capacity or the other. Therefore, the issue is no longer at a level of individual crime.

No doubt, at a narrow and personal level, the allegation will point to the infiltration of telephonic devices and unauthorised surveillance. This would fall within the ambit of the Telegraph Act and the Information Technology Act, and also attract certain provisions in the Indian Penal Code (IPC). But any serious concern over the issue will necessarily take this as an attack on the nation, its institutions, citizens, and democracy in multiple ways. The culpable silence of the regime that allegedly tried to betray its people is inexcusable and least convincing.

The fact that as many as 142 persons were allegedly targeted in India indicates the political and institutional nature of the conspiracy, which a responsible government cannot ever ignore. Did the government or its agencies seek the spyware service? This is essentially the question that every enlightened citizen is bound to ask. It does not arise out of speculation based on hearsay. A consortium of 17 media houses across the world, in collaboration with the French news organisation Forbidden Stories, has come out with credible and legitimate reports. They have also relied on the forensic endorsement of the allegations by Amnesty International. Many have also pointed to the political bond between Prime Minister Narendra Modi and the erstwhile President of Israel, Benjamin Netanyahu, by focussing on the proximity between Modi’s visit to Israel and the period of the alleged snooping. The widespread and multifaceted nature of the issue with international ramifications calls for an independent and effective investigation into this global digital crime. As the journalist M.K. Venu wrote: “Only a genuine probe, both at the national and global level, would reveal the true extent of use of Pegasus. Any journalistic venture is limited by resources and its investigations can only give strong evidentiary pointers to a bigger transgression” (The Wire, July 29, 2021). The petitions before the Supreme Court seek such a probe. The opposition in both Houses of Parliament also demands the same.

The legal landscape

In People’s Union for Civil Liberties (PUCL) vs Union of India in 1996, the apex court analysed the scope as well as limitations of Section 5(2) of the Indian Telegraph Act. This is a pre-constitutional enactment that does not jurisprudentially enjoy the moral legitimacy of a post-constitutional law, for it was enacted by the colonial regime without parliamentary debate.

But the striking feature of the law is that despite its colonial vintage, it imposes heavy restrictions on the state’s power to interrupt or detain or prohibit telegraphic (electronic) communication. It is permissible only “on the occurrence of any public emergency or in the interest of the public safety”. The government should satisfy the requirement to do so for reasons related to national security, public order, prevention of crimes, and so on. Any interception, or actions akin to that, can happen only by an order where the reasons are to be recorded. Even according to the colonial law, an act of interception must be preceded by a due process with a great sense of accountability.. The provision clarifies that for press messages, transmission is the rule, and interception or detention can occur only when there is an express prohibition under Section 5(2) of the Act.

Also read: India: Privacy in peril

A comparison of these safeguards with the snooping that has allegedly taken place now would be highly instructive. In the PUCL case, the Supreme Court said that the right to privacy, though “by itself has not been identified” under the Constitution, is part of the right to life and personal liberty enshrined under Article 21 of the Constitution. A striking feature of the judgment is that it read the pre-constitutional statute constitutionally; the statute, too, facilitated such a reading by its own content. The court, while analysing the terms of Section 5(2) of the Telegraph Act, gave it a more restrictive meaning and thereby indicated that a public emergency cannot be conceived merely on the basis of a unilateral assertion by the government that does not stand to reason.

When the PUCL case was decided, India was yet to have a comprehensive law on information technology. The Information Technology Act (IT Act) came into effect from October 17, 2000, and was substantially amended many times. This special enactment makes hacking an offence. Chapter XI of the Act talks about different offences under the Act. It includes tampering (Section 65), identity theft (Section 66-C), violation of privacy (Section 66-E) and so on. Section 66-E gives an extremely narrow definition of privacy by limiting it to the private parts of a person’s body. These provisions, on their own, are insufficient to deal with the issues involved in the Pegasus case.

Yet, significantly, Section 66-F of the IT Act talks about “cyberterrorism”, for which punishment up to imprisonment for life is prescribed. Going by the language of Section 66-F, even an attempt at an unauthorised penetration or access to computer resource that goes against the sovereignty and integrity of India or the security of the state is a serious offence. Such cybercrimes against the national interest could be committed by those running the state as well, both definitionally and practically. The allegations related to Pegasus prima facie indicate such activities were allegedly carried out by using the state machinery, taking advantage of the apparatus that India’s own democracy provided to such persons responsible.

Testing moment for Puttaswamy case

It is essential to notice the famous rewriting of the law that happened in Justice K.S. Puttaswamy (Retd) vs Union of India in 2017, which is bound to have a precedential value that the apex court cannot ignore while deciding the Pegasus list. Justice Y.V. Chandrachud, as part of the majority in the infamous A.D.M Jabalpur case in 1976, endorsed the suspension of fundamental rights during the Emergency. He said in the judgment that “the right to personal liberty has no hallmark”. According to him, the express provisions on fundamental rights in the Constitution do not make them absolute and unalterable because what is provided by the Constitution can also be annulled by it. He said: “It is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era”. Without any such dilemma, Justice H.R. Khanna, in his seminal dissent, said: “Even in the absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life or liberty without the authority of law”. In the Puttaswamy case, D.Y. Chandrachud, as part of a nine-judge bench, categorically said that “the judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed”. Thus, the Puttaswamy case has overruled the highly disillusioning and dreadful proposition in the A.D.M Jabalpur case that blatantly supported executive high-handedness.

In the Pegasus case, the impact of the Puttaswamy case must be in this more fundamental fashion. The question of targeted surveillance needs to be constitutionally addressed, on the basis of the libertarian platform laid down in the Puttaswamy case in contradistinction with the “seriously flawed” proposition in A.D.M Jabalpur. This writer has indicated that the pragmatic value of the verdict in the Puttaswamy case will have to be tested in concrete political situations and not merely at the doctrinal level ( “Not an honourable track record”, Frontline, November 24, 2017). Though the Puttaswamy case has repeatedly been relied on in many litigations across the country in the context of various dimensions of the right to privacy, the Pegasus case could prove to be a clear testing moment for the judgment.

Also read: Pegasus scandal: Modi government on the back foot

Privacy becomes a fundamental value since it pertains to the liberty, dignity and autonomy of an individual, as recognised in the Puttaswamy case. More importantly, the reliance on privacy is also an assertion against an aggrandising and intruding state. Privacy is a communitarian and political idea, which, too, was recognised in clear terms in the Puttaswamy case. In the words of Justice D.Y. Chandrachud, “privacy is the constitutional core of human dignity”. The United States Supreme Court in Katz vs United States (1967) explained that the Fourth Amendment to the U.S. Constitution ensures a “reasonable expectation of privacy”. Unlike the U.S., the Indian Constitution does not specifically talk about privacy as a fundamental right. Therefore, in the Puttaswamy case, it is by way of a judicial synthesis and adopting an organic approach to the Constitution, instead of textually reading it, that the Supreme Court explained privacy. It implied in so many words that in India, privacy is also a political right.

The legal challenges that Pegasus poses to India and inside India are unique and to a good extent, unprecedented. They are not related to mere crimes at the individual or international level. The issue hints at the emergence of surveillance states across the countries in furtherance to a global conspiracy that has scant regard to the democracies or institutions elsewhere. It can pose a threat to the media, civil society movements, political protests, and functioning of institutions including the Cabinet, the judiciary, the bureaucracy, and the legislature. There are reasons to believe that the intrusion has something to do with certain cardinal decisions that impacted the nation. Many included in the list of targeted persons are connected or concerned with several major developments in the country, in the recent past.

When the PUCL case was decided, the Court was concerned with a narrow compass of state-induced surveillance on the citizens. But the Puttaswamy case is drawn on a larger canvas which has a potential to address various facets of the Pegasus row. The neuroscientist-filmmaker Mauktik Kulkarni wrote: “If true, the implications of such surveillance are not limited to political, bureaucratic, journalistic, or judicial opponents of the current government. They will affect the economic climate, open-minded academic inquiry, and spirited debates among students and civil society, which are all essential for a thriving democracy” (Scroll.in, August 2, 2021).

The Pegasus issue poses an unprecedented challenge to India. The future will depend upon how the nation and its institutions respond to it. It is to be seen whether we will have yet another “tryst with destiny”, as Jawaharlal Nehru famously put it.

Kaleeswaram Raj is a lawyer at the Supreme Court of India.

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