The Supreme Court on Thursday, 5 August, asked the petitioners, who have filed cases regarding recent reports about use of the Pegasus spyware, to serve copies of their petitions on the central government so they can respond as to whether notice should be issued in the matter.
The bench of Chief Justice of India NV Ramana and Justice Surya Kant sought clarity on why people allegedly affected by Pegasus snooping had not filed complaints/FIRs, but also noted that "the allegations are serious if the reports are correct."
The list of cases that came up for hearing by the court included:
Public Interest Litigations (PILs) filed by advocate ML Sharma, journalists N Ram and Sashi Kumar, Rajya Sabha MP John Brittas, and the Editors Guild of India;
Writ Petitions filed by people whose names feature on the list of potential Pegasus snooping targets, including journalists Paranjoy Guha Thakurta, SNM Abdi, and Rupesh Kumar Singh, as well as electoral reforms activist Jagdeep Chhokar.
The judges did not decide whether to issue notice to the Union government on these petitions (ie, to get the government to respond to the arguments of the petitioners) – they will take a call on that after hearing from the Centre on Tuesday, 10 August.
Not Just About Individual Complaints, But Bigger Constitutional Question: Lawyers for Petitioners
CJI Ramana began the hearing by asking the lawyers for the petitioners (PILs and Writ Petitions) to address some basic concerns.
First, he observed that the allegations were based on media reports (while noting that there were credible media involved and the allegations were serious).
Next he noted that there had been revelations about the use of Pegasus in 2019 – so why were cases only being filed now. Then, he asked whether the petitioners who were claiming to be affected by hacking had filed complaints and exercised their existing legal remedies.
The court heard from a host of senior advocates on behalf of the petitioners: Kapil Sibal (for N Ram and Sashi Kumar), Shyam Divan (for Jagdeep Chhokar), Meenakshi Arora (for John Brittas), Chander Uday Singh (Editors Guild of India), Rakesh Dwivedi (SNM Abdi and Prem Shankar Jha) and Arvind Datar.
"Pegasus is a rogue technology, it infiltrates into our lives without our knowing," Sibal said. "All that is required is a telephone and then enters our lives. It hears, watches and surveils every movement. It is an assault on privacy, dignity."
He went on to add that there were findings made by a California court in WhatsApp's case against NSO about the way Pegasus works and how it definitely can be used to infiltrate phones. The allegations made in that case, including that Pegasus had been used against 121 Indians, had been acknowledged by former Law and IT Minister Ravi Shankar Prasad in 2019, he noted – despite which there had been no investigation or inquiry.
"This technology cannot be used in India if you don’t purchase it. It can only be a government or government agency. We cannot give answers, only government can. We don’t know all the facts. Under Evidence Act, they have to tell us, as they have special knowledge. This poses a big threat to everything our Republic stands for."
Responding to the CJI's question about why the petitions had only been filed after two years from the original revelations, Sibal said that they could only file responses based on the information that was coming out from investigations by organisations like Citizen Lab and the media.
He also informed the court about the most recent revelations, that numbers on the potential list of Pegasus targets included Supreme Court registrars and even a number which was once used by Justice Arun Mishra.
CU Singh then explained how the current petitions were based on the reporting by media houses part of the Pegasus Project from July 2021 onwards, as part of which some of the targets' phones were forensically analysed.
Meenakshi Arora contested the judges' statements that the petitions were 'two years late', referring to Ravi Shankar Prasad's response on the floor of Parliament in November 2019 that there had been no unauthorised interception of communications. However, the new responses changed that.
Shyam Divan then took the court through the background to the new media revelations, including how a whistleblower had provided the media houses with a list of potential Pegasus targets.
He argued that "this was a detailed investigative reporting project by multiple reputed media houses."
He observed that governments like that of France had relied on these reports to launch investigations and speak to Israel about the spyware. "These are therefore media reports which have high degree of credibility," he said.
"For a private citizen to be surveilled in this manner, is extremely serious," Divan argued, adding that this "amounts to a war on a country's citizens."
Rakesh Dwivedi built then on a point which Divan raised, that this wasn't just a case where individuals could file complaints about what had happened to them, the use of a tool like Pegasus was a much bigger issue.
"This is a matter of wide and huge dimensions. It's not a case of a single person’s phone being bugged, but is virtually a mass action. A foreign company is involved. The government might be involved. Given the global dimensions, this is a matter where this court has to be involved with the inquiry."Rakesh Dwivedi
He said that surveillance can be allowed, within the bounds of the law, for terrorists and serious criminals, but there was no reason to employ it against ordinary citizens and journalists. As a result, given the nature of the allegations, "this is a constitutional issue as well, not just a criminal matter."
Arvind Datar addressed the court's queries about filing complaints/using existing remedies by observing that there were in fact no proper remedies for hacking in the Information Technology Act. Under Section 43, a person who is hacked can sue in a civil court, but for that one needed to know for sure who is responsible.
When it comes to criminal complaints, for a breach of privacy, there is only Section 66E of the IT Act, which deals with capturing images of private parts.
While CJI Ramana pointed to the various 2009 Rules connected with the IT Act and Section 66 of the Act as possible remedies available to those affected by Pegasus, Datar argued these were framed too long ago to be useful when it comes to spyware like this.
"The Supreme Court in its right to privacy judgment in 2017 has articulated a concept of privacy with wider contours than what was understood in 2009. We know a few of the people who have been monitored – who knows how many have been targeted. That is why we need the Supreme Court to look into this. The provisions of IT Act and amendments to it and the Rules could not have contemplated a tool like this. The judiciary has to be in vanguard position. The court can consider this to be almost like a class action."Arvind Datar
All the lawyers confirmed that they were not asking the court to pass any directions in the matter at this time, but only to issue notice so that the Centre would respond to the allegations.
As no lawyer from the government was present to argue against admission of the petitions, the judges then asked all the petitioners to make sure they served copies of the pleas on the Centre so that they could consider the matter further on 10 August.
The judges also noted that there were a very large number of petitions before them, and not all the requests (including some for declaring provisions of the IT Act and Rules and Telegraph Act as unconstitutional) would be appropriate to be taken up.
This could mean that even if notice is issued, the court will frame a more limited set of questions to look into.
The bench also had criticism for advocate ML Sharma for the quality of the petition filed by him in the matter, including the fact that he had named the prime minister and home minister as respondents rather than the Union of India.
Privacy, Hacking, Govt Involvement & Press Freedom: What the Petitions Argue
The key arguments across the petitions filed in the apex court are that the use of a spyware tool like Pegasus violates the targets' fundamental right to privacy, and cannot be justified as lawful surveillance – instead, it amounts to illegal hacking of the victims' devices.
"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."Petition by N Ram (Director of The Hindu Publishing Group) and Sashi Kumar (founder of Asianet and Director of the Asian College of Journalism)
The Writ Petitions filed by the alleged victims of Pegasus snooping (with forensic analysis confirmation for Guha Thakurta and Abdi) argue that this was in fact "state-sponsored illegal hacking".
The involvement of the government is presumed by them on the basis of the Centre's failure to deny purchasing and using the spyware, as well as manufacturer NSO Group's insistence that they only sell their technology to governments and state agencies.
In addition to the core arguments on privacy and surveillance, the Writ Petitions and the PILs filed by journalists also specifically argue the impact that this usage of surveillance has on freedom of the press.
"Freedom of the press relies on non-interference by the government and its agencies in reporting of journalists, including their ability to securely and confidentially speaking with sources, investigate abuse of power and corruption, expose governmental incompetence, and speak with those in opposition to the government [sic]."Petition by the Editors Guild of India
In Guha Thakurta's petition, it is contended that the kind of unlimited surveillance that this "military-grade technology" allows, can never be considered a "reasonable restriction" on freedom of speech, as allowed by Article 19(2) of the Constitution, since this attacks the reporter/journalist themselves, not just their speech.
What Has the Supreme Court Been Asked to Do?
The PILs almost uniformly seek some sort of judicially monitored probe into the allegations that Pegasus was used against Indian citizens.
The Editors Guild of India and John Brittas have asked the Supreme Court to constitute a Special Investigation Team (SIT) to probe the procurement and use of Pegasus in India. N Ram and Sashi Kumar have sought an inquiry headed by a sitting or retired judge of the apex court.
The Writ Petitions by affected journalists have asked for the setting up of a "judicial oversight mechanism to deal with any complaints on illegal breaches of privacy and hacking and punish all government officials responsible for such breaches".
Another consistent demand across the PILs and Writ Petitions is for the Centre to disclose conclusively whether it has acquired and used Pegasus and other similar spyware against Indian citizens.
They have also asked for the Centre to provide the apex court with all documents and materials relating to purchase of such technology, the choosing of targets, authorisation of surveillance, and the details of all those targeted.
Several of them have also asked for declarations from the court that the use of spyware like Pegasus amounts to illegal hacking, not lawful surveillance, and that existing rules for surveillance and interception are unconstitutional.
What is the Pegasus Project?
Reports published since 18 July by an international collaboration called the 'Pegasus Project' – including online news portal The Wire in India – have revealed that over 300 journalists, activists, Opposition leaders, government officials and even current Union ministers may have been potential targets of surveillance through the Israeli NSO-made Pegasus spyware over the past few years.
While forensic analysis has been able to confirm that the phones of at least ten of these people were compromised using the spyware.
While the Centre on Friday, 30 July, had said that the controversy over allegations of spying was a "non-issue", the Opposition among other parties involved has demanded answers in Parliament.
Congress leader Rahul Gandhi, former Election Commissioner Ashok Lavasa, poll strategist Prashant Kishor, as well the woman staffer who had levied sexual harassment allegations against the former Chief Justice of India Ranjan Gogoi (as well as several of her family members) were revealed as potential targets of the spyware.
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