Litigation News

"Right to privacy extends to control over one's mobile phone:" Journalists N Ram, Sashi Kumar move Supreme Court for probe into Pegasus scandal

ByDebayan Roy

Director of Hindu Group of publications N Ram and founder of Asianet Sashi Kumar have approached the Supreme Court seeking an enquiry by a sitting or retired judge of the Supreme Court into the Pegasus surveillance scandal.

The petitioner also sought directions to be issued to the Government of India to disclose if the Government of India or any of its agencies have obtained license for Pegasus spyware or used it either directly or indirectly, to conduct surveillance as alleged.

"Mass surveillance using a military-grade spyware abridges several fundamental rights and appears to represent an attempt to infiltrate, attack and destabilise independent institutions that act as critical pillars of our democratic set-up," the plea said.

The petitioners pointed out that the government has not categorically ruled out obtaining Pegasus licenses to conduct surveillance in their response, and have taken no steps to ensure a credible and independent investigation into these extremely serious allegations.

The plea placed reliance on news reports by The Wire and other international publications to raise the following issues:

- Has targeted surveillance been conducted on journalists doctors, lawyers, opposition politicians, ministers, constitutional functionaries and civil society activists by illegally hacking into their phones using the Pegasus spyware?

- What are the implications of such a hack? Do they represent an attempt by agencies and organisations to muzzle and chill the exercise of free speech and expression of dissent in India?

Pegasus software is a weapons grade spyware/surveillance tool manufactured by an Israeli cyber-arms firm NSO Group Technologies Limited (NSO Group). It is extremely advanced and is capable of infecting a mobile phone/ device without any interaction with the owner. It can conduct intrusive surveillance including inter tracking and recording calls, reading text and WhatsApp messages. It can also be used to plant files on devices.

NSO claims that Pegasus is sold only to “vetted governments” and not to private entities, though the company does not reveal which governments it sells the controversial product to.

The petitioners submitted that a forensic analysis of several mobile phones belonging to persons targeted for surveillance by the Security Lab of Amnesty International have confirmed Pegasus-induced security breaches.

"Such targeted surveillance using military-grade spyware is an unacceptable violation of the right to privacy which has been held to be a fundamental right under Articles 14, 19 and 21 by the Supreme Court in KS Puttaswamy v. Union of India," the petition stated.

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, the plea added.

Further, it was submitted that such targeted hacking/interception of journalists, doctors, lawyers, civil society activists, government ministers and opposition politicians seriously compromises the effective exercise of the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution.

The petitioners also contended that the legal regime for surveillance under Section 5(2) of the Telegraph Act was completely bypassed in the present case.

"Surveillance/interception is justified only in cases of public emergency or in the interests of public safety, and the existence of such conditions must be inferred reasonably and cannot be determined solely on the assessment of the government. Neither of these mandatory conditions have been met in the present case, rendering the surveillance wholly illegal," the petition said.

This is the third petition before Supreme Court seeking probe into Pegasus scandal. Earlier, advocate ML Sharma and Rajya Sabha MP John Brittas had also moved the top court seeking probe into the spying allegations. None of the petitions have been heard yet.

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