Hearing records indicate that the judiciary has allowed the government to evade most of its piracy.
In July this year, a global coalition of media organizations revealed that a Mobile phone spyware — Pegasus – was being used to survey journalists, activists, dissidents and political leaders in many countries. Created by an Israeli cyber-arms firm called NSO Group, Pegasus is a highly aggressive malware that, once installed on a person’s phone, can collect and transmit data, track activities such as browsing history, and The phone can control functionalities such as the camera. The NSO Group claims that its only clients are tried-and-tested governments. Thus Pegasus’ revelations indicated the potential for serious government abuse.
another episode
The revelations further revealed that around 50,000 mobile phone numbers were potentially infected by spyware. Many of these numbers were Indian, and belonged to journalists, activists and politicians. This was not the first time such a thing had come to the fore. India joined the list of countries using Pegasus in early 2018. In 2019, it was found that several activists, including some of the accused in the infamous Bhima Koregaon case, were potentially spied on, and their mobile phones were compromised. Later that year, WhatsApp reported a Pegasus-related security breach to the Indian government, targeting 121 Indian citizens. Thus, the July 2021 revelations were not new, but were only the most recent and most comprehensive accounts of military-grade surveillance being conducted on Indians.
a stone track
Following the Pegasus revelations, some countries such as France and Morocco ordered immediate investigations. In India, however, the story has consistently been one of official stonewalling. In October 2019, a Right to Information request regarding whether the Indian government had purchased Pegasus software was met with a “No information available” response. MPs questioned the government in the Lok Sabha and Rajya Sabha, where once again there was no response on the purchase or use of Pegasus. The government did this in response to various parliamentary questions in 2020 and 2021, and even after the 2021 revelations, including effectively canceling the parliamentary committee’s inquiry into the issue, disabling it from functioning by politicians from the ruling party. maintained the stance. depriving it of a quorum.
This history clearly indicates that efforts to hold the executive accountable for possible abuses of government oversight powers in Parliament have been a complete failure for more than two years. Under our constitutional scheme, however, there is a third wing of the state that exists to address situations where executive abuses and violations of fundamental rights are not being investigated by the available mechanisms: the courts. As a result, in late July, several petitions were filed before the Supreme Court of India, alleging violations of fundamental rights and India’s legislative framework dealing with legitimate interception of communications.
However, it has been almost two and a half months now without the petitions coming to court without meaningful action. Between August 5 and September 13, 2021, the court held six hearings on the matter.
issues are simple
The issues before the court were simple: Did the Indian government authorize the use of Pegasus on individuals whose names appeared on the list? If it does, was there any justification for using such intrusive surveillance on individuals who were not accused of any wrongdoing? And if it didn’t, wasn’t it a violation of the government’s constitutional obligation to protect its citizens from the use of military-grade surveillance by rogue actors? It is important to note that the petitions were not some fishing expedition asking the government to reveal details about its usual interception techniques: rather, they were brought to court by individuals who were themselves influenced by Pegasus. were, and were focused on accountability: in short, whether the Indian Constitution allows for large-scale and uncontrolled surveillance of individuals – surveillance that goes far beyond simple interception of communication, and effectively abducts and deregisters the individual’s mobile phone – With outright punishment?
Nonetheless, throughout the hearing, the government continued to follow its evasive path: it repeatedly refused to file an affidavit, unless pressured by the court to do so. The final affidavit he filed was nothing more than a recapitalization of his evasive stand in Parliament. Furthermore, it resisted answering key questions on the grounds that doing so would undermine “national security”. However, this has recently been an unfortunate trend: whenever the question of widespread and serious rights violations arose, the government not only refrained from responding, but to indicate that even That even when asked, recites the word “National Security” like a mantra. The question is illegitimate in any way. Thus, “national security” becomes the cloak of impunity.
on court conduct
Nowhere was this more apparent than during the Pegasus hearings. If a person whose mobile phone has been hijacked by a military-grade spyware that is only sold to governments, and if the Constitution has any meaning, it means that person has a right to know that he or she Why was it done, and at whose behest? And – along with the inability of Parliament to hold the executive accountable – the only place a person can seek answers is the courts. It has nothing to do with “national security”, and everything to do with whether we are a country governed by the rule of law – where the rule of law applies to both individuals and the state – or whether we live under a regime. whether or not there are executive impunity.
Unfortunately, however, hearing records so far indicate that the court has allowed the government to evade most of its piracy. Despite the passage of two and a half months, the Court has yet to pass any consequential orders, for example, orders directing the government to refuse to provide information to Parliament and citizens. Furthermore, the conduct of the court is not limited to inaction. When the State of West Bengal set up a committee to investigate Pegasus, the court considered a petition against it – despite having no grounds for doing so – and verbally gave its disapproval (without any reason to do so). of explicit grounds), effectively compelled the state. Government should stop the investigation. No legal justification was provided as to why the court decided to hear such an irregular petition, or why the state of West Bengal was required to halt the investigation into the violation of fundamental rights.
need for direction
On September 13, the last date of hearing, the court indicated that it would constitute a committee to investigate the matter. However, it puts the cart before the horse: it is not clear why the Court has not drawn an adverse finding against the government for its repeated refusal to answer direct questions about potentially abusive surveillance; It makes sense to constitute a committee after such a conclusion is returned. Moreover, the substantial time that has elapsed since the last order is worrisome. In India, we have a long experience of “death by committee”: issues that require immediate attention for several months in a committee, and once the public memory becomes dull, are quietly buried. . It is important that this should not happen in the present case. Thus, the court’s direction to the government to answer whether it is spying on citizens who are not charged with an offense – a direct yes/no question – and, if the answer is yes, to clarify The necessity is why or has to face legal consequences. – would be a good start.
Gautam Bhatia is a lawyer based in Delhi.
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