By Dr Olav Albuquerque
The Modi government just may have achieved a dubious first by being the first government in post-independence India to be accused of lying to the Supreme Court and to Parliament, two institutions which form the bedrock of democracy, if a news report published in The New York Times on January 28, alleging Prime Minister Narendra Modi inked a deal accepting NSO’s spyware Pegasus as part of a $ 2 billion sophisticated missiles and intelligence package for India, is correct. Modi’s visit to Israel was the first-ever such visit of an Indian prime minister to Israel.
Union Minister VK Singh, rubbished the sensational news report published by the world’s most respected newspaper, The New York Times, calling it “supari media.” This minister formerly headed the Indian Army and is the first general to have accepted a ministerial berth after retiring as a general. Be that as it may, what is even more sensational is that the Modi government has been accused of supporting Israel in the United Nations by voting against observer status for a Palestinian-based human rights body, on suspicion that it had links with terror outfits. This has been rubbished by India’s permanent ambassador to the U.N. at that time, Syed Akbaruddin.
The Pegasus spyware which can be used by governments to snoop on whomsoever they choose in the name of national security, infects all mobile phones without the knowledge of the victim. It does not need the victim to click on a link as more primitive spywares do. An innocuous message is sent which activates the camera and collects data of all contacts, photos, locations, conversations even with the camera turned off.
The Pegasus spyware has reportedly been used to hack the phones of Congress leader, Rahul Gandhi, a Supreme Court judge, opposition leaders and even the woman who accused the former Chief Justice of India Ranjan Gogoi of sexual harassment and also her relatives who certainly cannot be accused of being a threat to national security.
Three hundred Indians are reportedly under the surveillance of Pegasus, such as doctors, lawyers, opposition leaders, journalists and activists.
Coming close on the heels of former Vice President Hamid Ansari alleging that an imaginary cultural nationalism had replaced civic nationalism preceded by retired Supreme Court judge Rohinton Nariman questioning the Prime Minister’s silence on hate speeches, the alleged purchase of the Pegasus spyware by India has eroded democracy. If even the mobile phones of a select few dissidents are kept under surveillance, revealing everything the government wants to know about certain individuals, this is a drastic violation of the right to privacy.
In September 2018, Citizen Lab, which is a laboratory based out of the University of Toronto, Canada, first divulged that 50,000 private individuals were under surveillance from a hi-tech spyware called Pegasus which infected their mobile handsets and could even implant incriminating but false data.
On June 15, 2020, Citizen Lab, with Amnesty International said nine Indian citizens had been targeted followed by another news report on July 18, 2021, when17 journalist bodies from around the world, including an Indian affiliate, released the results of a long investigative effort proving the alleged use of the Pegasus software on private individuals.
The NSO Group purportedly sells this sophisticated software only to government agencies which means elected governments which was confirmed by the Israeli ambassador to India.
In May 2019, the global messaging giant WhatsApp Inc. divulged a snag in its software allowed the Pegasus spyware to infiltrate the devices of WhatsApps users.
This news was followed by a disclosure that the devices of certain Indians had been infiltrated, which was confirmed by the minister of law and electronics and information technology in a statement made in Parliament on November 20, 2019.
The Supreme Court’s stand on questioning the government emerged from its judgment last year when it clearly said judicial review was not intended to create judicial oligarchy, or covert legislation. Hence, what should be debated in Parliament and in the media cannot be transferred to the judicial arena, the judgment of the three-judge bench laid down.
The point is that the government wanted to set up an expert committee to probe the allegations levelled in a batch of writ petitions filed in the Supreme Court. But the petitioners opposed this, saying this was tantamount to the government probing itself and the committee lacked credibility.
No less a person than the solicitor general of India told the judges that the committee set up by the government would comprise experts who would not be influenced by extraneous factors. But such a government-appointed committee was shot down by the petitioners who approached the Supreme Court because their mobile phones were allegedly infected by Pegasus.
A designated senior advocate Shyam Divan of the Supreme Court said his phone was allegedly infected by the Pegasus software and wanted a special committee to be set up.
Another senior advocate Rakesh Dwivedi, said several senior journalists were victims of the Pegasus attack and if the government had sworn an affidavit that it had not used a malware or spied on its citizens in an unauthorized manner, the petitions would have abated.
The three judges who heard the case were Chief Justice of India NV Ramana, Justices Surya Kant and Hima Kohli. They said the first requirement was there must be a law in existence to justify an encroachment on privacy which violates Article 21.
Second, the requirement of a need, in terms of a legitimate state aim, ensures the nature and content of the law which imposes the restriction falls within the zone of reasonableness as against arbitrary state action. Judicial review does not re-appreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from arbitrariness. The third requirement ensures that the means which are adopted by the legislature are proportional to the object sought to be achieved.
A committee of three judges headed by retired Supreme Court Justice RV Raveendran has already issued an advertisement in all national newspapers calling for those who believed their mobile handsets had been infected to hand over their devices for forensic analysis with their reasons why they felt the government had put them under surveillance.
Needless to say, very few journalists or activists will respond to such an advertisement jeopardising their sources of information.
This is why it is unlikely that anything significant may emerge from the committee set up by the Supreme Court to probe the Pegasus surveillance scandal which has rocked the nation. Given that the government will never admit to using the spyware against its own citizens and the fact that it will stonewall such endeavours to collect information, it is highly unlikely that the committee will find anything significant.
(The writer is a practising advocate in the Bombay HC)