Four Indian journalists and one activist, whose phone numbers appeared on a list of potential Pegasus targets, have moved the Supreme Court to protect their fundamental right to privacy.
These petitions – by journalists Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh, and activist Ipsa Shatakshi – are significant because they are the first to be filed by persons who have been personally affected by the alleged hacking.
Previous pleas asking for Supreme Court intervention over the revelations about the use of the NSO Group's spyware on Indian citizens had been PILs filed by persons who had not themselves been compromised by Pegasus: advocate ML Sharma, journalists N Ram and Shashi Kumar, and Rajya Sabha MP John Brittas.
Among the new petitioners, forensic analysis of both Guha Thakurta and Abdi has confirmed that their phones were compromised using Pegasus, according to reports by the Pegasus Project.
The five petitions, filed through Advocate-on-Record Prateek Chadha, are expected to be listed on 5 August before Chief Justice of India NV Ramana and Justice Suryakant, along with the earlier PILs, which have asked for a court-monitored probe into the snooping allegations.
What Do the New Petitions Argue?
According to the petitions, the use of a "military-grade technology such as Pegasus" to compromise their phones amounts to 'hacking' as defined under the Information Technology Act.
This is, on the face of it, illegal, and a violation of Section 43 of the IT Act, since it involves accessing a computer system, damaging the device and extracting data from it.
They also argue that the use of Pegasus violates:
Section 66B of the IT Act – which punishes dishonest receiving of stolen data
Section 72 of the IT Act – which punishes breach of confidentiality and privacy.
They contend that the use of spyware like this cannot be justified as lawful surveillance, since it goes beyond mere interception of communications.
The Union of India, ie the Centre, has been named as the respondent in the petitions as the central government has failed to deny it purchased and used Pegasus against Indian citizens, and the NSO Group has continued to insist that it only sells its technology to governments.
As a result, the petitioners state that there has been "state-sponsored illegal hacking" which violates their fundamental rights under Articles 19 and 21 of the Constitution.
This has "caused irreparable injury and harm" to the journalists and activists, "that warrant payment of damages or other rehabilitative measures" from the Centre to secure and enforce their rights.
The petitions highlight the chilling effect that even lawful surveillance creates – as noted by the Supreme Court in previous judgments and the Justice Srikrishna Committee Report.
When illegal hacking enters the picture, this is amplified even further, and violates the right to privacy, they argue.
"Illegal and unlawful surveillance by hacking computer devices, as in the present case, does not even offer these limited procedural safeguards to an aggrieved individual. It is grossly in contravention of the privacy principles that have been endorsed by this Hon’ble Court in Puttaswamy (I) & Puttaswamy (II), for hacking through the use of Pegasus lacks any sense of accountability or transparency and results in leaving the aggrieved persons without any scope for redressal."Petition filed by Paranjoy Guha Thakurta in Supreme Court
Dangers to Press Freedom
The four journalists have specifically raised some additional concerns about the use of a tool like Pegasus against members of the press.
"Constant surveillance upon journalists and reporters violates that right under Article 19(1)(a) and impinges upon the freedom that the press needs in order to provide impartial and unbiased coverage, uninfluenced by external factors other than the truth of the story," their petitions argue.
It is contended that this kind of surveillance 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.
"The surveillance using Pegasus is used as a tool to gag, silence and suppress independent reporting."Petition filed by Paranjoy Guha Thakurta in Supreme Court
What do the Petitions Ask For?
The hacking victims have asked the court to declare that the installation and use of malware/spyware like Pegasus is "illegal and unconstitutional."
In addition, they have also asked the apex court to direct the Centre to produce and disclose all documents connected to the investigation, authorisation and orders for usage of Pegasus against them.
They also request the Supreme Court to direct the central government to take steps to protect Indian citizens from the use of "cyberweapons" like Pegasus.
The final prayer by them to the court is 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."