The ‘yes or no’ the court must ask about Pegasus

Record of hearings says judiciary allowed government to get away with much of its escape

In July this year, a global coalition of media organizations revealed that a cell phone spy software – Pegasus – was used in a number of countries to monitor journalists, activists, dissidents and political leaders. Manufactured by an Israeli cyber weapons company called NSO Group, Pegasus is highly invasive malware that, when installed on an individual’s phone, can collect and transmit data, track activities such as browsing history. and control features like the phone’s camera. The NSO Group claims that its only customers are controlled governments. The Pegasus revelations thus pointed to the possibility of serious government abuse.

Yet another episode

The revelations further showed that approximately 50,000 cell phone numbers had been potentially infected with the spyware. Many of these numbers were Indian and belonged to journalists, activists and politicians. It was not the first time that such a thing had been revealed. India was on a list of countries using Pegasus as early as 2018. In 2019, it was found that a number of activists, including some of the defendants in the infamous Bhima Koregaon case, had potentially been spied on and their cell phones. had been compromised. Later that same year, WhatsApp notified the Indian government of a Pegasus-related security breach, with up to 121 Indian citizens targeted. The July 2021 revelations were therefore not new, but only the most recent and extensive accounts of military-level surveillance over Indians.

A stonewalling track

In the aftermath of the Pegasus revelations, some countries like France and Morocco ordered immediate investigations. In India, however, history has been one of continuing official obstruction. In October 2019, right to information requests as to whether the Indian government had purchased the Pegasus software were answered “no information available”. The parliamentarians posed questions to the government at Lok Sabha and Rajya Sabha, where, again, no response on the purchase or use of Pegasus has been received. The government continued to maintain this position in response to various parliamentary questions posed to it in 2020 and 2021, and even after the 2021 revelations, including the effective cancellation of a parliamentary committee investigation into the matter, ruling party politicians preventing it from functioning by denying it a quorum.

This story makes it clear that attempts by Parliament to hold the executive accountable for a possible abuse of government oversight powers have been thwarted entirely for more than two years. In our constitutional scheme, however, there is a third wing of the state that exists precisely to deal with situations where executive abuses and fundamental rights violations are not controlled by available mechanisms: the court. As a result, at the end of July, multiple petitions were filed with the Supreme Court of India alleging violations of fundamental rights and the Indian legislative framework dealing with lawful interception of communications.

However, it has now been almost two and a half months since the petitions reached the court, without significant action. Between August 5 and September 13, 2021, the Court held six hearings on the case.

The problems are simple

The questions before the court were simple: Did the Indian government allow the use of Pegasus on the people whose names were on the list? If so, is there any justification for using such intrusive surveillance on individuals who admittedly have not been charged with any wrongdoing? And if not, was it not a violation of the government’s constitutional obligations to protect its citizens from the use of military-level surveillance by dishonest actors? Importantly, the petitions were not a fishing expedition asking the government to reveal details of its general interception techniques; rather, they were brought to court by individuals who had themselves been affected by Pegasus, and focused on accountability: In essence, does India’s constitution allow frantic and uncontrolled surveillance of individuals – surveillance that goes far beyond simply intercepting communications and effectively hijacking the cell phone from an individual – with impunity?

Nonetheless, throughout the hearings, the Government continued its momentum: it repeatedly refused to submit an affidavit setting out its position in writing, until the Court urged it to do so. The final affidavit she filed was nothing more than a recap of her evasive position in Parliament. In addition, he continued to oppose answering fundamental questions put to him, on the grounds that it would undermine “national security”. However, this is a recent and unfortunate trend: whenever the question of serious and widespread rights violations arises, the government recites the words “national security” as a mantra, not simply to avoid providing answers. , but to suggest that even asking the question is somehow illegitimate. In this way, “national security” becomes a veil of impunity.

On the conduct of the tribunal

Nowhere was this more evident during the Pegasus hearings. If a person whose cell phone has been hijacked by military grade spyware that is only sold to governments, and the Constitution means anything, that means that person has a right to know why it is. was done, and at whose request. And – with Parliament’s inability to hold the executive to account – the only place the individual can look for answers is the courtroom. It has nothing to do with “national security”, and everything to do with the fact that we are a country governed by the rule of law – where the rule of law applies to both individuals and to society. State – or if we live under a regime of executive impunity.

Unfortunately, however, a record of the hearings so far indicates that the court has allowed the government to get away with it. Despite the passage of two and a half months, the court has yet to issue any consequential orders, including, for example, orders directing the government to provide the information it has refused to provide to parliament and citizens. . Moreover, the conduct of the Court was not limited to inaction. When the State of West Bengal set up a committee to investigate Pegasus, the court allowed a plea against him – although he had no reason to do so – and verbally expressing its disapproval (without any reason clear to do so), effectively forced the state government to suspend the investigation. At no point was any legal justification provided as to why the Court decided to hear such an improper plea, or why the State of West Bengal was required to cease investigating human rights violations.

Need guidance

At the last hearing date, September 13, the court said it would establish a committee to review the case. However, this puts the cart before the horse: it is unclear why the court has yet to draw unfavorable findings against the government for its repeated refusal to answer simple questions about potentially abusive surveillance; the creation of a committee would make sense after such a conclusion was reached. In addition, the considerable time that has elapsed since the last order is worrying. In India, we have a long experience of “death by committee”: issues that require urgent attention linger for many months in a committee, and once public memory has worn off, are quietly buried. It is essential that this does not happen in this case. Thus, a court instruction for the government to respond if it has spied on citizens not charged with any offense – a direct yes / no question – and, if the answer is yes, to ask it to explain why or do facing legal consequences – would be a good start.

Gautam Bhatia is a Delhi-based lawyer

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