PEGASUS PROBE: A CONSTITUTIONAL CRISIS?

“Sometimes the scandal is not what law was broken, but what the law allows.”

-Edward Snowden

According to Greek Mythology, Pegasus was a winged horse who emerged from the blood of Gorgon Medusa after Perseus beheaded her. However, in the 21stcentury, Pegasus is a computer virus that allegedly can be sent flying through the air to snoop on journalists. activists, advocates, judges, heads of states, or the people who are a potential threat to the Government.

Pegasus is spyware that has been developed by an Israeli company NSO group. The reports show that it is the most powerful spyware ever made because once it sneaked its way into your device, it is capable of 24-hour surveillance. It can turn on your camera, microphone, start video recording, track your location, copy text messages secretly without the phone user’s notice.

The developer company has marketed the spyware as a tool that would aid in tracking down criminals and terrorists around the globe that is why it is licensed to “vetted Governments” around the world. Although the investigation around Pegasus unveils a completely different plotline wherein the investigation preliminarily indicates that the Government had used the spyware to commit towering human rights violations by spying on individuals around the globe.

A Paris-based NGO Forbidden Stories with the technical support of the human rights group Amnesty International in collaboration with more than 80 journalists from 17 media houses of 10 countries conducted an investigation that revealed 50,000 phone numbers of people who are supposedly the interest of the clients of the NSO group. The investigation has also revealed that NSO’s clients or potential clients are in these 11 countries Azerbaijan, Bahrain, Hungary, India, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Togo, and the United Arab Emirates (UAE).

In 2016 the earliest versions of the Pegasus Spyware when an unsuccessful attempt was made to hack Ahmed Mansoor a UAE human rights activist’s device. The Citizen lab’s researchers found out that the spyware is infecting phones via sending text messages or email with a malicious clickbait link also known as spear phishing.

Furthermore, the recent probe on the spyware has also unveiled the involvement of the Pegasus spyware in the murder of the Saudi journalist Jamal Khashoggi. Devices of Khashoggi’s family were found infected with the software prior to his murder in Istanbul in 2018. However, in an official statement, the NSO Group has denied all the claims concerning the journalist’s murder.

Pegasus Spyware and India

On 18th July 2021, The wire reported the name of 40 Journalists from almost every prominent Indian media house whose name was there on the list for potential targets of surveillance and some of which have been successfully hacked by this Pegasus Spyware between the period of 2017-2021. Furthermore, not only journalists, over 300 Indians from different fields were on the list of the person of interest. From election strategist, Prashant Kishor to the Supreme Court’s staff who accused former Chief Justice Ranjan Gogoi of sexual harassment in 2019 and a lot of prominent names were there on the list.

This Pegasus controversy has thrown light on the possibilities of how the Government might be trying to attack the three most important pillars of democracy i.e., the judiciary, the executive, and the media. The freedom of speech and expression envisaged under Article 19 (1) (a) and the right to privacy under Article 21 which was declared as a fundamental right in the case of Justice K.S. Puttaswamy (retd.) V Union of India. Therefore, this alleged act of spying is not only illegal, but it is also a gross violation of the citizen’s fundamental rights which cannot be taken away from them in any situation. 

Moreover, the act of spying is an offense u/s.66 read with s.43 of the Information Technology Act,2000 that is punishable with imprisonment for a term which may extend for three years or a fine which may extend up to 5 lakhs or both. However, s.69 of the Act empowers the Central Government to issue directions for any interception or monitoring of any information through any computer source, if the said monitoring is in the interest of sovereignty or integrity of India, or for the security of India or to maintain friendly relations with foreign states. Although, the Central Government has the power to intercept if the information is for the National interest but it is only possible through legal means. Thus, the use of spyware is outright illegal even if the spying on 300 individuals was actually the topic of National Interest.    

 

 

Pegasus and Judiciary

Total Nine petitions have been filed by various journalists like N. Ram and Sashi Kumar and organizations like the Editors’ Guild of India concerning the Pegasus controversy in the Supreme Court wherein the petitioners have sought an inquiry in the Pegasus probe. Furthermore, the petitions have also sought an order from the Top Court concerning the disclosure that whether the Pegasus spyware was used to conduct surveillance or not by the Indian Government or its agencies. The case hearing is pending before the Supreme Court’s three-judge bench comprising of Chief Justice N.V. Ramana and Justices Aniruddha Bose and Surya Kant.

Earlier on 16th August 2021, the Ministry of Electronics, and Information Technology (MEITY) had filed a two-page limited affidavit denying Central Government’s involvement in the Pegasus Spyware case and had stated that the accusations made in the petition are “mere conjectures and surmises based on unsubstantiated media reports or incomplete or uncorroborated material”. Furthermore, the affidavit highlighted that the Government would constitute the committee to investigate further into the matter and mitigate the wrong narrative which is being disseminated. 

However, the petitioners were not content with the said affidavit as it has been submitted by MEITY, not the Ministry of Home Affairs which is the statutory authority for surveillances. Also, the affidavit does not mention anything about whether the Government or any of its agencies conducted any kind of surveillance through Pegasus spyware.

Solicitor General of India, Tushar Mehta appearing on behalf of the Central Government had submitted before the Court that the Government cannot disclose the information if the interception has been done for National security as it will alarm the terrorists to develop the equipment which is not compatible with the Pegasus. Counsel Mehta was firm on the ground that the Government cannot admit whether Pegasus has been used for interception or not.

The bench has issued a pre-submission notice to the Central Government to file the affidavit. The Court has also stated that it did not want the Government to compromise National Security and divulge something confidential in nature however, the bench remarked that only a competent authority can respond to the claims of the eminent individuals whose phones were hacked. Although the Information Technology Act,2000 permits interception even for the civilians but with permission from the competent authority i.e., the Home Ministry. Justice Surya Kant went on and stated “What is the problem if the competent authority filed an affidavit before us?

Considering these events, wherein The Government has placed a limited affidavit and the Supreme Court is of the view that the Competent Authority must reply comprehensively regarding the matter at hand raises the question that Is this Pegasus probe is hinting towards a constitutional crisis?

Will Government and Judiciary be at Loggerheads?

Time alone will tell, whether this probe will intertwine itself as it unravels or the issue raised in the petitions will be clarified convincingly.

Concluding Remarks

The use of spyware like Pegasus in democratic countries is going to open up a pandora’s box in terms of human rights violations and as to what extent the Governments are going to annihilate the voices of dissent or mere opinions. In a country like India which defines itself as the largest democracy in the world wherein both right of privacy and freedom of speech and expression are enshrined as Fundamental Rights in our Constitution, this act of spying on citizens is a major step back and cannot be overlooked.

Our Government was very quick to refute the reports highlighting India’s name in a spying controversy as mere conjectures and exaggerations to malign the Indian democracy and its institutions as the Parliament’s Monsoon sessions are ahead. Meanwhile, other countries like France, UK, and Israel have ordered an internal inquiry. The Indian Government is denying the allegations of any wrongdoings associated with the spyware even though, usage of Pegasus has not yet been denied by the competent authority.  

If India’s name is identified among the governments who misused the spyware in the investigation that is being conducted by the Israeli Government, then it would impact India’s diplomatic relations as well. Furthermore, if the allegations were to be proved true it would affect India’s reputation as the world’s largest democracy and the faith of the citizens in the Government will also fall short.  

This controversy has raised colossal questions for which appropriate answers are vital. The Government must address those questions as well as formulate a legal framework to balance the security of the state without compromising the rights bestowed upon the citizens by the Constitution.

 

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