The Court will decide whether there must be an investigation into the Government of India’s alleged use of Pegasus spyware on journalists, activists and public officials.
In 2019, Facebook sued the NSO Group, an Israeli technology firm. They alleged that NSO’s spyware - Pegasus - was used to spy on users of Facebook’s messaging platform, WhatsApp. The spyware could be downloaded onto a mobile device, without the user knowing and compromised his/her privacy. The NSO Group claims that they only sell this spyware to governments. During a 2019 lawsuit, it was alleged that at least 40 Indian citizens were on the list of potential snooping targets that included journalists and Dalit and Adivasi activitists. This implied that the Indian government had purchased and used this spyware.
On July 18th, 2021, new allegations were made by the ‘Pegasus Project’ - an international consoritum of 17 media organisations and Amnesty International. They leaked a list of 50,000 phone numbers which were potential targets for the spyware. In India, The Wire published the Project’s findings. They alleged that traces of the spyware were found on the devices used by the editors-in-chief of The Wire. Such traces were also found on the device of Prashant Kishor, a political strategist who most recently worked with the Trinamool Congress in West Bengal. Other potential, though unconfirmed, targets in this list included opposition leader Rahul Gandhi, Supreme Court judges Ranjan Gogoi and Arun Mishra and Union Minister Ashwini Vaishnaw.
These developments rocked Parliament's Monsoon Session that began on July 19th. Members demanded a government response to the allegations. On July 22nd, Vaishnaw, the I.T. Minister, said that there were sufficient checks and balances placed on the government's surveillance powers and that the Pegasus reports had 'no factual basis'. He further added that surveillance was permitted under the Telegraph Act, 1885 and the IT Act, 2000.
Between July 22nd and August 3rd, multiple petitions were filed on the Pegasus controversy at the Supreme Court. The petitioners included Jagdeep Chhokar (founder of Association for Democratic Reforms) and Paranjoy Guha Thakurta (journalist), who were targetted by the spyware. Petitions were also filed by N. Ram (journalist and editor of The Hindu) and John Brittas (Rajya Sabha MP). The petitioners have requested a judicial probe to investigate if the Indian government used Pegasus to spy on journalists and other citizens, and if due process was followed. They also submitted to the Court that Pegasus would have a chilling effect on freedom of speech and expression and violate the right to privacy
On August 10th 2021, the Court asked the Union to respond to the the petitions.
1. Should the Court order an investigation to determine if the Union Government used Pegasus spyware?
2. If the Union Government has used Pegasus spyware, does this violate the right to privacy?
3. If the Union Government has used Pegasus spyware, does this violate any surveillance related legal framework?