Breach of Privilege? Threat to SC Admin? Why New Pegasus Report is Worrying
Using spyware against lawyers and Supreme Court registry officials has serious implications for the legal system.
In the latest of its reporting about the use of Pegasus against Indian citizens, The Wire has revealed that the potential list of targets for the spyware's clients includes phone numbers of:
Supreme Court registry officers;
lawyers for the accused in high-profile cases;
a junior of former Attorney General for India Mukul Rohatgi (added after he demitted that office), and;
a phone number that used to belong to Justice Arun Mishra, a former judge of the apex court (added while he was still a sitting judge).
While the inclusion of a number that belonged to Justice Mishra - whose tenure saw many controversies because of a perceived closeness to the BJP - is perhaps the most eye-catching of the revelations, the former judge has said that he surrendered the number in 2013-14, long before it was added to the list of potential targets in 2019.
However, while this may remove one extremely serious cause for concern, the other revelations have serious consequences for the sanctity of the legal system in India, and make it even more important for there to be an investigation into the potential use of this spyware.
An Attack on Attorney-Client Privilege
Mukul Rohatgi says that he does not know for sure if it is true that his junior's number - a number which is reportedly used as a point of contact for Rohatgi himself sometimes through his junior - has actually been added to the list or compromised by Pegasus.
He is clear that "if done, it's illegal and violative of privacy, a fundamental right under the Constitution".
There is, however, an additional dimension to this when the target is a lawyer, as he points out.
"The use of spyware on the phone of an advocate, if confirmed, would be even more serious as the phone is likely to be used for privileged communications with their clients."Senior advocate Mukul Rohatgi
The concept of attorney-client privilege is one of the most important features of legal systems around the world, including India's. Sections 126-129 of the Indian Evidence Act set this down in writing: that communications between a lawyer and their client cannot be disclosed.
This confidentiality applies in all cases, civil or criminal, and is a cornerstone of the way in which things need to be proved in a court of law.
In criminal cases, the need for confidentiality is even clearer; if an accused's discussions with their lawyer are not protected, then the police can use them to scupper any legal defence.
If the state therefore gets hold of a person's communication with their lawyer, it could lead to a violation of their right against self-incrimination. If a private party or foreign entity gets hold of these, it can gain access to extremely sensitive information that be used to blackmail the person, or in civil cases, help their adversary.
According to The Wire's most recent revelations, the potential list of Pegasus targets includes numbers of advocate Vijay Agarwal (and his wife), who was added soon after he took on the fugitive diamantaire Nirav Modi in 2018, as well as Aljo P Joseph, who represents alleged Agusta Westland middleman Christian Michel.
Preliminary forensic analysis of Joseph's phone indicates that the phone was indeed compromised, they report, while Agarwal's and his wife's phones are not available for analysis.
The hacking of these lawyers' phones would allow access to privileged information in two criminal cases that are highly politicised. But it's not just the communications involving Nirav Modi and Christian Michel that would be compromised, but confidential discussions between the lawyers and their other clients, as Supreme Court advocate Karuna Nundy points out.
The same goes for the phone of Rohatgi's junior, M Thangathurai. It's not just that communications involving the major political figures that the senior advocate could be at risk here - but all the clients that his office represents.
Moreover, the usage of Pegasus also allows the planting of documents on the target's phone, and can lead to a dangerous chain of lawyers getting swallowed up by cases involving their clients, even though they are merely doing their jobs by representing them.
"We've seen in cases like the Bhima Koregaon matter, how documents appear to have been planted on the devices of accused persons. When lawyers for the accused in criminal cases, like Surendra Gadling and Sudha Bhardwaj, get implicated in the cases they are fighting, that has serious implications for a justice system. The use of Pegasus, which also has this ability to plant documents, against lawyers is therefore extremely concerning."Karuna Nundy
No matter who the possible hacker is, this kind of access would undeniably be a threat to the privacy of those concerned, and makes a mockery of fundamental tenets of the rule of law in India.
Rohatgi does not believe the claims that Pegasus has been used by the Indian government and authorities against Indian citizens, noting that nothing has yet come out to confirm that the NSO Group sold its technology to the Indian government. He also questions why the government would snoop on its own ministers, as the claims would indicate.
Threats to Supreme Court's Administration?
The phone numbers of two Supreme Court registry officers - NK Gandhi and TI Rajput - also reportedly feature on the list of potential snooping targets. Both are supposed to have been working in the 'writ' section of the registry when their numbers were added in early 2019; Gandhi has since retired.
The Supreme Court's writ jurisdiction is one of its most important: it is what allows the court to hear petitions claiming violation of fundamental rights, and to pass orders to ensure that fundamental rights are protected. Dr BR Ambedkar called the court's writ jurisdiction "the very soul of the Constitution and the very heart of it."
The usage of Pegasus against officers of the Supreme Court registry raise several uncomfortable questions.
An obvious one is whether this has then been used by the operator of the spyware to blackmail or pressurise or influence the officers - which could be used to impact several administrative issues at the court, including when sensitive cases will be listed. While the Chief Justice of India is the 'master of the roster' and decides which judges will hear which cases, the registry is responsible for the logistics of it all.
Advance knowledge of the listing of sensitive matters could also be beneficial to those involved in the cases (or likely to be affected by them), so there is no need for the officers to actually be blackmailed for someone to benefit from snooping on them.
At the same time, for a tool like Pegasus, which costs a great deal of money, to be used for this purpose, seems a bit disproportionate. The question then arises as to what other purposes there might be to hack the phones of specific officers at the registry.
Is the objective to target a judge that the officer is in regular contact with? Or the parties to the cases they are handling?
These kind of questions make it even more important that there be a proper investigation of the allegations that have been raised by the media through the Pegasus Project, that this spyware has been used against Indian citizens.
The ball, in that regard, is now in the Supreme Court's court, with Chief Justice NV Ramana set to hear a batch of petitions regarding the allegations from 5 August, including requests for court-monitored probes.
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