Paras Dargarh
Introduction
For the past few weeks Pegasus project which was used to spy on the dissidents is doing rounds on digital and social media. In reality, a case cannot be made out based on a research report which finds its origin from nowhere. So this article deals with what is Pegasus project and can any legal action be taken by the Supreme Court.
The Background
Few weeks back, a sensational story broke out on TheWire portal which dealt about how Pegasus software was being used to snoop the dissidents of the current regime. It was published in partnership with Forbidden Stories, a French non profit organization, Amnesty International and 16 other international media outlets. According to the piece, it is claimed that a leaked database which has thousands of mobile number believed to have been listed by various governments, includes 300 Indians especially the opposition leaders, journalists, cabinet ministers and a sitting judge of Supreme Court who are being snooped by the Indian government. Only 37 phones were forensically examined and it was found that 10 of them were Indians. A majority of the numbers identified in the list were geographically concentrated in 10 country clusters: India, Azerbaijan, Bahrain, Hungary, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia and the United Arab Emirates. These phones which were examined were found to be in use in the mid 2017 and mid 2018.
According to Information and Technology Act, 2000 in India, spying on any individual’s phone without his or her consent is an offence and just like the impugned act many countries have their own act which makes spying an offence. The Wire had also found a number which it claims to be the mobile number of sitting Supreme Court Judge but the name of judge is withheld because his mobile is not operational. TheWire also claims that the mobile phone of the accused named in the Elgar Parishad Case were also spied on by the government. Soon after this so called snoop gate made rounds on social media Israeli surveillance company NSO group, which sells the Pegasus spyware worldwide came out and refuted to allegations made against it that the phones of leaders were being spied.
“The report is full of wrong assumptions and uncorroborated theories that raise serious doubts about the reliability and interests of the sources. It seems like the ‘unidentified sources’ have supplied information that has no factual basis and are far from reality,” an NSO Group spokesperson said in a statement to Zee Media.[1] It also said that it denies all false allegations made in the report and the sources supplied TheWire information with no factual basis. Soon, Indian Government also came out and said that similar allegations were made by it on Pegasus being used by Whatsapp but the parties and even the Supreme Court denied it. It also said that free speech is cornerstone for India’s democratic system.
Pleas in Supreme Court
A batch of petitions have been filed in the Supreme Court of India seeking independent probe into the so called snoop gate matter. These petitions have been filed by Editors Guild of India and senior journalists including N. Ram, editor of The Hindu, and Shashi Kumar. Editors Guild of India has sought for a special investigation team to investigate into the so called snoop gate. Its petition which included veteran journalist Mrinal Pande has written that its members and all journalists have the right to hold the government responsible and to ask for constitutionally valid justifications into the actions and inactions by the government. Another journalist Paranjoy Guha has filed the petition seeking directions to the Centre to disclose all materials with respect to investigation and authorization pertaining to the purported use of Israeli spyware on his mobile. In the first hearing the Apex Court had expressed concern about why the petition weren’t filed as a criminal complaint under Telegraph Act/ Information Technology Act. And it has also observed that none of them made any serious attempt to collect verifiable material evidence on the so called snoop gate.
International perspective
According to Times of India’s report[2], France has launched a probe on Pegasus which said that French President Emmanuel Marcon and 15 others could be potential targets. The report also says that the source of data leak and how it was authenticated is yet to be disclosed and the numbers that were listed does not mean they were hacked. As is common under French law, the investigation doesn’t name a suspected perpetrator but is aimed at determining who might eventually be sent to trial. According to Business Standard[3], Israel government has also launched a probe against the NSO group for the alleged wrongdoings. Amid all the probes initiated against NSO, the Israeli firm had come out in support of the probe. Hubio had said that the investigation could clear the firm’s name and also added that these allegations are an attempt to smear the whole cyber industry of Israel.
Article 19 and 21 not being violated
In order for the Apex Court to take cognizance of matter under Article 32 of Indian Constitution is necessary to show that fundamental right of the citizen is being violated. As it is seen that Article 19 is not an absolute right and it comes with restrictions. Article 19(2) of the Indian Constitution allows the state to impose restrictions on free speech under following heads:
- Security of the state
- Incitement to an offence
- Sovereignty and integrity of India
TheWire report on Pegasus reveals that the phones of people named as the primary accused in the Elgar Parishad Case was snooped. To name a person the Wire article tells that Wilson’s chat who was made a prime accused was tapped an year before his arrest in the case. Elgar Parishad event was organized in 2017 on the eve of bicentennial(200th) commemoration of Battle of Bhima Koregaon. On January 1 2018 violent clashes broke out which left one person die and several others were wounded. So, this matter would fall under incitement of offence which comes under reasonable restriction to free speech.
In State of Bihar v Shailabala Devi[4], it was held by the Supreme Court that incitement to murder or any other violent crimes would endanger the security of the state and hence such restriction would be valid under Article 19(2). Secondly, the argument is whether this snoopgate violates Article 21 that is right to privacy? The answer would be in negative. Right to privacy has been an integral part of Article 21 of Indian Constitution but it is not absolute. It can be taken by the state anytime it feels that national security is under threat. So this justifies the surveillance of mobile phones of people who were made prime accused in Elgar Parishad Case which instigated violence. In Govind v State of Madhya Pradesh[5], it was held by the Supreme Court that surveillance cannot always be an unreasonable restriction on free speech and it differs from case to case and it was also observed that right to privacy is not absolute and it must be subject to restrictions on the basis of compelling public interest.
Evidence
In order for a court to start an investigation in any case it needs a proper evidence. Section 3 of Indian Evidence Act 1972 defines evidence. Evidence in legal sense means anything admitted by a Court to prove or disprove alleged matters of fact in a trial. There are different types of evidence as stated in the Indian Evidence Act 1872 such as hearsay evidence, oral evidence etc. If a case were to be taken on the basis of this article it would come under hearsay evidence. Hearsay evidence is a type of evidence wherein the person has not seen or heard of that incident but has obtained knowledge through a third party about such incident. This is perhaps the weakest kind of evidence and it becomes admissible only if it is backed by sufficient proof. This article doesn’t back proof because firstly it mentions leaked database everywhere in the article but at the end doesn’t specify the source of that database and secondly a sentence in the article reads as follows: “The mere presence of a phone number in the leaked data does alone not reveal whether a device was infected” which is sufficient enough to prove that this article may not be used as the evidence.
In a case[6], it was held that newspaper article in evidence as proof of the facts recited therein are out of declarations of the court and held to be inadmissible in court against hearsay rule. So it is quite evident that newspaper article as a proof would have little value as evidence in courts.
Conclusion
The article would not be enough as a proof as this article in itself uses the word ‘may’ many times which shows that the researcher had published the article without sufficient research. And even if the article is to be used as a proof then the petitioner needs to get the source of leaked database which is used in article many times. Otherwise, it would be inadmissible in Courts. The next hearing is scheduled on 10th August 2021. It is expected that the Supreme Court won’t take action against the government because surveillance is necessary to protect national security and Elgar Parishad event which led to violent clashes was against India’s national security and integrity. Section 5(2) of the Indian Telegraph Act, 1885, the government can intercept a message or class of messages in the interest of India’s sovereignty and integrity, security, friendly foreign relations and preventing the incitement of illegal acts. The procedure to do so finds place under Rule 419A of the Indian Telegraphic Rules, 1951. It becomes clear from this article that the alleged snoop gate is false as the article in itself is not well researched and secondly, even if the petitioners were to prove the case, the point that surveillance is important for national security can become the best defence for the Indian government.
Views are Personal.
(Author is a Law Student at Symbiosis Law School, Pune)
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[1] Pegasus Spyware Report: Israeli Firm NSO says government snooping data far from reality, Kritika Bansal, https://www.india.com/news/india/pegasus-spyware-report-israeli-firm-nso-says-allegations-of-govt-snooping-far-from-reality-4825386/
[2] TNN, France launches probe in Pegasus spying row (July 21, 2021) https://timesofindia.indiatimes.com/world/europe/france-launches-probe-into-pegasus-spying-row/articleshow/84599223.cms
[3] Press Trust of India, Pegasus Scandal: Israel launches probe into allegations against NSO (July 30, 2021) https://www.business-standard.com/article/international/pegasus-scandal-israel-launches-probe-into-allegations-against-nso-121073001709_1.html
[4] State of Bihar v Shailabala Devi, AIR 1953 SC 329.
[5] Govind v State of Madhya Pradesh, AIR 1975 SC 1378.
[6] Watford v. Evening Star Newspaper Co., 31 (D.C. Cir. 1954).