Writ Petition Summary (Mr. Rupesh Kumar Singh & Mrs. Ispa Shatakshi)Pegasus Spyware Probe
On July 18th, 2021, the ‘Pegasus Project’, spearheaded by Forbidden Stories and Amnesty International, published a report claiming that over 50,000 phone numbers around the world were spied on with the use of the Pegasus spyware. ‘The Wire’ published the report’s findings in India along with the names of people who were targeted. The list includes journalists, Opposition leaders, activists and judges.
The NSO Group, which developed the spyware, claims that Pegasus is only sold to government intelligence and law enforcement agencies. Between July 22nd and August 3rd, 2021 multiple petitions were filed seeking a probe into the Union government’s alleged use of Pegasus.
Rupesh Kumar Singh, an independent journalist based out of Jharkhand, and his partner Ipsa Shatakshi, filed their petition on July 31st, 2021. They claim that they were targeted in response to Mr. Singh’s reports about state violence against Adivasi communities in Jharkhand. They requested the Court to declare the use of Pegasus unconstitutional and compel the Union to disclose any material about the use of Pegasus.
What Does the Petitioner Seek?
- A declaration from the Supreme Court that the use of Pegasus or similar malware is unconstitutional.
- A direction for the Union to disclose material such as documentation of investigations, authorisations, and orders, pertaining to the use of Pegasus.
- A direction for the Union to take steps to protect citizens from the use of surveillance softwares such as Pegasus.
- A direction for the Union to install a judicial oversight mechanism to deal with breaches of privacy and to punish officials responsible for such breaches.
The Use of Pegasus Violates the Information Technology Act, 2000 and the Telegraph Act, 1885
Mr. Singh and Mrs. Shatakshi state that the creators of Pegasus (the NSO Group) only provide their spyware to governments. So far, the Union government has not expressly refuted the allegations that they used the spyware. This indicates that the Union government may have used the Pegasus spyware.
Further, they submitted that the use of Pegasus involves introducing a ‘contaminant’ or a ‘virus’ that damages the targeted device and extracts data without the permission of the owner. This is punishable under Section 43 of the Information Technology Act, 2000 (IT Act).
Mr. Singh and Mrs. Shatakshi claim that the use of Pegasus violates Section 66B of the IT Act, which punishes ‘dishonest receiving of stolen computer resources’ which includes the data stored on a device. Further, the use of Pegasus ‘goes much beyond’ the interception, monitoring and decrypting of messages which is allowable under Section 69 of the IT Act and Section 5 of the Telegraph Act, 1885.
Invoking Section 72 of the IT Act, Mr. Singh and Mrs. Shatakshi claim that using Pegasus breaches the confidentiality of an individual by securing access to their digital material without their petition.
The Use of Pegasus Violates the Fundamental Rights of the Target
In order to establish the connection between Fundamental Rights and the role of smartphones, Mr. Singh and Mrs. Shatakshi refer to the United States Supreme Court case Riley v California (2014). The U.S. Supreme Court held that smartphones are ‘extensions’ of a person due to the personal and private information that can be found on the device. Mr. Singh and Mrs. Shatakshi claim that smartphone hacking violates the Right to Privacy.
Shifting to the Indian legal regime around surveillance, they argue that there is a severe lack of safeguards to protect an individual’s Right to Privacy, Freedom of Speech, and Right to Freely Practice any Profession. There is no judicial oversight, and the sole authority with the power to prevent misuse is the Executive themselves.
Mr. Singh and Mrs. Shatakshi refer to Justice Subba Rao’s dissenting opinion in Kharak Singh v State of U.P. (1962) to argue that surveillance violates the Freedom of Movement under Article 19(1)(d) of the Constitution. While an individual may be able to move physically, they cannot do so freely because their actions are recorded.
Further, they argue that Pegasus and surveillance in general has a ‘chilling effect’ on the Freedom of Speech by restraining an individual’s ability to think freely. Pegasus endangers the anonymity of journalistic sources and negatively affects journalistic freedom. Additionally, this violates a journalist’s ability to practice their profession freely.
The Right to Privacy is negatively affected as well, according to the petitioners. Targets of Pegasus do not receive any indication of their phone being attacked, as Pegasus is largely undetectable to the general user. They are unlikely to know if their phone is being surveilled. There is no notice of privacy being infringed upon when Pegasus is used, nor is there any accountability or transparency in the process.