This is one of many Pegasus-related petitions filed with the Supreme Court of India, which is scheduled for the next hearing on August 16th.

A written petition from journalists Rupesh Kumar Singh and Ipsa Shatakshi challenged the constitutionality of surveillance using Pegasus spyware. The petition, a copy of which MediaNama has seen, has been brought to the Supreme Court of India July 31 Prays for a judicial oversight mechanism to deal with data breach complaints in the future.

Background: The Pegasus Project is a collaborative effort by 17 news organizations led by Forbidden stories and Amnesty International. Their investigation hit a data breach that revealed more than 50,000 phone numbers to be the target or potential target of snooping by multiple governments. NSO Group, the developer of Pegasus, clarified that the spyware is sold to governments and their agencies to use against terrorists and criminals. From 50,000 numbers almost 300 belonged to Indian nationals who are journalism, activism, politics, business, etc. Singh and Shatakshi’s phone numbers are on the leaked list as potential snooping targets and they are represented in the case by attorney Prateek Chaddha.

Why is it important? The revelations brought to light by the Pegasus project have serious implications for the inviolability of fundamental rights such as freedom of expression and expression.

The prayers of the petition

The petitioners requested that the Supreme Court of India issue the following instructions to the Union Government:

  • Declare illegal and unconstitutional to install and / or use malware or spyware such as Pegasus and Ultra vires Part III of the Indian Constitution.
  • Disclosing materials and documents relating to an investigation and orders related to the use of Pegasus to the SC and petitioners.
  • Take measures to protect Indian citizens from the use of cyber weapons / malware such as Pegasus.
  • Establish a judicial oversight mechanism to handle complaints about illegal data breaches and hacking
  • Punish all government officials responsible for such violations.

The reasons the petition was submitted

The petitioners challenge the government for the following reasons:

  • Hacking a smartphone with military technology like Pegasus is “ex facie illegal and against”
    Section 43 (a), 43 (b), 43 (c) and 43 (d) of the IT Act, 2000. “
  • The use of Pegasus is against Section 66B of the IT Act, which punishes dishonestly obtaining stolen computer resources.
  • The use of Pegasus is also against Section 72 of the IT Act, which imposes a penalty for breach of confidentiality and privacy for anyone who accesses electronic materials without the consent of the person who owns the materials.
  • Hacking by Pegasus cannot be classified as legitimate or authorized surveillance that is permitted under Section 69 of IT law or even Section 5 of Telegraph Act, 1885.
  • Pegasus contributes to the subversion of the Whistleblower Protection Act, 2014.
  • Providing spyware for hacking computers and computer systems Bear connection to central government as the NSO Group has confirmed that it only makes the military spyware available to governments.
  • The government must Providing information to identify the source of illegal executive acts (Hacking) by officials with a government investigation into not clearly denying allegations related to the NSO group.
  • State-sponsored illegal hacking of the petitioners’ smartphones is an outward violation of their fundamental rights Articles 19 and 21 of the Indian Constitution.
  • Concentrated and centralized state power creates a deterrent effect and prevents citizens from thinking freely. This leads to a behavior change that is against Article 21 the Constitution.
  • The chopping under Pegasus is roughly in Violation of the data protection principles advocated in Puttaswamy (I) & Puttaswamy (II) due to a lack of accountability or transparency.
  • It violates press and journalistic freedom as the constant surveillance of activists and journalists undermines this right Article 19 (1) (a). “Pegasus surveillance is being used as a tool to choke, silence and suppress independent reporting and activism,” the petition reads.
  • The snooping leaves sources providing information to journalists vulnerable to retaliation by the state.
  • The use of Pegasus leaves data subjects without legal recourse for a lack of data protection law in India.

A summary of the petitions before the SC

  • Lawyer ML Sharma was the first to petition the SC to request an investigation by the court-overseen Special Investigation Team (SIT). The petition also asked the government to provide details on how to purchase and use the Pegasus spyware.
  • Rajya Sabha MP John Brittas from the Communist Party of India (Marxist) filed another PIL and asked the Supreme Court to order an SIT investigation.
  • Senior journalists N Ram and Sashi Kumar in their petition that the government must categorically recognize whether the state has ordered the purchase of Pegasus. They also requested an inquest into the matter.
  • The Publishing Guild of India Petition calls for SC-supervised investigation and calls on government to come up with orders authorizing wiretapping via Pegasus with reasons, and Providing information on Pegasus-assisted surveillance and hacking in India between 2017 and 2021.
  • Senior journalist Paranjoy Guha Thakurta urged the SC to ban the use of spyware, including Pegasus, in India and to order the government to disclose all documents relating to Pegasus use. His petition was also submitted by Prateek Chaddha.
  • Two other journalists SNM Abdi and Prem Shankar Jha have submitted petition which requires a SIT probe monitored by the SC. They are represented by attorney Prateek Chaddha, who also appears for Paranjoy Guha Thakurta, Rupesh Singh and Ipsa Shatakshi.
  • ADR co-founder Jagdeep Chhokar’s Petition * urges the SC to direct the government to prosecute the government officials responsible for monitoring and to limit the future use of spyware to monitor the communications of Indian citizens.
  • Civil rights activist Narendra Mishra has also approached the court with a petition asking the court to intervene in the Pegasus surveillance matter.

* Disclaimer: Jagdeep Chhokar is related to Nikhil Pahwa, the founding editor of MediaNama.

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