Veteran journalists N. Ram, Director, The Hindu Publishing Group (THG) and former Editor-in-Chief, The Hindu Group of Publications, and Sashi Kumar, chairman of the Asian College of Journalism, have sought an independent probe into the allegations of surveillance on Indian citizens with the Pegasus spyware. They have filed a petition in the Supreme Court requesting a court-mandated probe by a sitting or retired judge of the Supreme Court to inquire into the allegations that more than 140 journalists, lawyers, activists, opposition leaders, constitutional functionaries, and even sitting Ministers of the government were spied upon using the Pegasus spyware.
A recent investigation by a consortium of 17 media houses across the globe including The Guardian (U.K.), The Washington Post , Haaretz , Le Monde , Radio France and The Wire found that hundreds of people from India were identified as potential targets for surveillance using Pegasus, which is manufactured by the Israeli firm NSO Group Technologies Ltd. Forensic analysis conducted by global non-profit Amnesty International’s Security Lab on some of the mobile phones belonging to persons targeted for surveillance confirmed Pegasus-induced security breaches through bugs in the system.
The petitioners sought a probe to find out whether targeted surveillance was done by illegally hacking into the phones of the targeted persons and the implications of such a hack. “Do they represent an attempt by agencies and organisations to muzzle and chill the exercise of free speech and expression of dissent in India?” the petitioners asked.
The petitioners also sought a direction from the Supreme Court to the Government of India to disclose if the government or any of its agencies had obtained licences for Pegasus spyware and employed it, either directly or indirectly, to conduct surveillance in any manner whatsoever. The petition stated that targeted surveillance using military-grade spyware was an unacceptable violation of the right to privacy, which was held by the Supreme Court to be a fundamental right under Articles 14, 19 and 21 of the Constitution in K.S. Puttaswamy vs. Union of India (2017) .
"The Pegasus hack is a direct attack on communicational, intellectual and informational privacy, and critically endangers the meaningful exercise of privacy in these contexts. The right to privacy extends to use and control over one’s mobile phone/electronic device and any interception by means of hacking/tapping is an infraction of Article 21. Further, the use of the Pegasus spyware to conduct surveillance represents a grossly disproportionate invasion of the right to privacy,” the plea said.
Moreover, the petitioners pointed out that the targeted interception of journalists, doctors, lawyers, civil society activists, government ministers and opposition politicians seriously compromised the effective exercise of the fundamental right to free speech and expression under Article 19(1)(a). “It has an obvious chilling effect on expression by threatening invasion into the most core and private aspects of a person’s life,” the petition said.
The specific targeting of scores of journalists was an attack on the freedom of the press and seriously abridged the right to know, which was an essential component of the right to free speech and expression, they explained.
The petitioners alleged that it seemed that the legal regime for surveillance under Section 5(2) of the Indian Telegraph Act, 1885, was completely bypassed in the matter. Interception, as such, was justified only in cases of public emergency or in the interests of public safety. The existence of such conditions had to be inferred reasonably and could not be determined solely on the assessment of the government. Neither of these mandatory conditions had been met in the present case, rendering the surveillance wholly illegal, said the petitioners.
“The hack/interception/decryption occasioned by the Pegasus spyware constitutes a criminal offence punishable under inter alia Section 66 (computer related offences), 66B (punishment for dishonestly receiving stolen computer resource or communication device), 66E (punishment for violation of privacy) and 66F (punishment for cyberterrorism) of the IT Act, punishable with imprisonment and/or fine. The attack prima facie constitutes an act of cyber-terrorism that has several grave political and security ramifications, especially considering that the devices of government ministers, senior political figures and constitutional functionaries which may contain sensitive information have been targeted,” the plea said.
This is the third writ petition filed in the Supreme Court on the revelations around the Pegasus spyware in India. Earlier, advocate M.L. Sharma and Rajya Sabha MP John Brittas had filed PILs in the matter.