This Article is written by ABHISHREE PARADKAR, a student of symbiosis law school, Pune
Recent developments in the Pegasus spyware controversy show that five of the journalists who had been reported to be one of the potential snoop targets have filed Write Petitions in the Apex Court and have contended that such unauthorized use of surveillance mechanisms by the government and its agencies is violating their fundamental rights as provided under the Indian Constitution.
This has been recognized as the first instance of a person approaching the Court and claiming that they have been directly affected and are personally aggrieved by the alleged act of hacking their mobile phones with the use of the Pegasus Spyware.
The Pegasus Controversy came to light on 18th July when The Wire and other international publications published reports which informed about the mobile numbers which could be the potential targets of the Pegasus Spyware which was given by NSP Company to several governments including India.
As per The Wire, 40 Indian Journalists, Political leaders and former ECI members have been considered to be the potential targets. It also stated the former staff member who raised a sexual harassment complaint against former Chief Justice of India Ranjan Gogoi, along with some of her family members is one of the potential targets of the Pegasus Spyware.
Three Writ Petitions have been already filed in the Apex Court to seek a Court-Monitored probe into the Pegasus matter. On August 5, the Chief Justice of India, N.V. Ramana, is scheduled to head a bench to hear the PIL that has been filed by veteran journalists- N Ram and Sashi Kumar to seek a judicial probe into the Pegasus controversy. These petitions have been filed for the benefit of public interest by third parties.
CONTENTIONS OF THE PETITIONERS IN PRESENT CASE
The petitioners, in this case, were Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh, and Ipsa Shataksi. They stated that on the basis of the forensic examination of their mobile phones by Amnesty International, the journalists found out that their phones have been targeted by the Pegasus spyware. They also stated that they had strong reasons to believe that such extremely intrusive surveillance and hacking had been the act of the Government of India or other third parties. They also highlighted that the Indian Government had not yet made any categorical denial of having used the Pegasus Spyware for the purposes of surveillance.
They also argued that such unauthorized surveillance through what we can call sophisticated software is likely to result in a “chilling effect” on the fundamental rights of free speech and result in blatant violations of the right to privacy and also deter whistleblowers and informants from coming forward to bring to lights the wrongdoings of the government and its agencies and in general be detrimental to the transparency of government all over India.
They also highlighted that on 29th July 2021, the National Cybersecurity Agency of France confirmed that the Pegasus software was present on the phones of two journalists from France’s online investigative journal Mediapart and it also becomes the first official government agency to confirm the Pegasus based cyber-attacks. However, the Indian government has to acknowledged or announced a probe in the said issue.
The petition also contends that while the petitioner is unaware of who is behind the use of Pegasus software is left in a position where even the most basic fundamental rights of the Petitioner such as the right to life, right to privacy, and right to free speech have been curtailed in a totally illegal manner and the government has neither investigated the matter nor commented or issued a statement to the effect that the Government of India or its agencies are not involved in purchasing, licensing or using the Pegasus software for spying and hacking the devices of journalists, advocates and human rights activists in India. Therefore, the petitioners are constrained to approach the court.
The advocate, Prateek Chadha, representing the five journalists sought the following reliefs-
- To declare that installation and use of spyware such as Pegasus is illegal as well as unconstitutional and also ultra vires of Part III of the Constitution;
- To issue an order, direction or Writ which includes Writ of Mandamus and direct the respondent to produce and disclose all materials which relate to the investigation, authorization and order with respect to the use of Pegasus spyware on the Petitioners;
- To issue an order, direction or Writ which includes Writ of Mandamus and direct the respondent to take the required steps to protect the citizens of India from such malware and cyberweapons such as Pegasus;
- To issue an order, direction or Writ which includes Writ of Mandamus and direct the respondent to form some “judicial oversight mechanism” for dealing with the complaints on hacking and illegal breaches on one’s privacy and also punish the government officials who are responsible for it;
- Lastly, pass any such order or relief as the court may deem fit in the interests of justice
LiveLaw News Network. (2021, August 02). Direct Centre To Disclose Use Of Pegasus Spyware : 5 Journalists On Potential Snoop List Move Supreme Court.
NDTV. (2021, July 27). “Direct Centre To Discuss Pegasus…”: 7 Opposition Parties To President.
The Wire. (2021, August 03). Pegasus-Affected Journalists, Activist Move SC, Want Govt to Come Clean on Spyware Use.