Pegasus: Editor's Guild Petition Summary

Background and Issue

On July 18th 2021, a consortium of global journalistic organisations released an investigative report on the use of the ‘Pegasus’ spyware. The spyware was used against journalists, public officials, lawyers and several ordinary citizens. A target list of over 50,000 phone numbers was leaked and the findings were published as a part of the ‘Pegasus Project’. The NSO Group which developed Pegasus claimed that it was only sold to governments.

 

In India, The Wire published the findings of the Pegasus Project on July 18th 2021. They alleged that traces of the spyware were found on the devices used by their editors-in-chief. The list of people possibly targeted has 161 names. This list includes politicians, journalists, activists and students. 

 

Between July 22nd - August 3rd 2021, multiple petitions were filed in the Supreme Court requesting a judicial probe into the Union’s potential use of Pegasus. One of the petitions was filed by the Editors Guild of India on August 2nd, 2021. The organisation was founded in 1978 with the objective of protecting press freedom.

 

What Does the Petitioner Seek?

The petitioner has urged the Court to - 

  1. Direct the Union to produce the orders authorising the use of Pegasus under the relevant law, with the reasons in writing;

  2. Direct the Union to furnish information on interception, monitoring and decryption done using the spyware, hacking and other kinds of electronic surveillance between 2017-2021; 

  3. Constitute a Special Investigation Team (SIT) to investigate the use of spyware such as Pegasus;

  4. Issue guidelines on surveillance against Indian citizens;

  5. Declare s 5(2) of the Indian Telegraph Act, 1885 and Rule 419A of the Indian Telegraph Rules, 1951 and as being unconstitutional, illegal and void;

  6. Declare s 69 of the Information Technology Act, 2000 (IT Act) and the provisions of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption) of Information Rules, 2009 as being unconstitutional, illegal and void.


 

Grounds

Provisions in the Indian Telegraph Act and the IT Act Don’t Consider Necessity

The petitioner argues that provisions from the Indian Telegraph Act, 1885, the IT Act and the rules created under them give the Union unchecked powers when targeting people for surveillance. Further, this gives the Union the power to exert influence over the subject of surveillance or even different classes of persons. 

 

These provisions do not take necessity into account for the authorisation of interception and monitoring. The scope of the information that may be collected is not restricted by what is strictly necessary. 

 

The guidelines laid down in PUCL v Union of India (1996) have become obsolete according to the petitioner. This judgment was written specifically for phone-tapping, and surveillance capabilities have expanded exponentially since then. 


Electronic Surveillance and Hacking Violates Freedom of Speech and Right to Life

The petitioner claims that the ‘right to know’ or the ‘right to information’ is a fundamental right under the freedom of speech and the right to life. The use of spyware and electronic surveillance on Indian citizens amounts to an abuse of power which citizens have a right to know about. The petitioner refers to the Court's holding in State of U.P. v Raj Narain (1975) which held that citizens have a right to know about every public act by their public functionaries, as a safeguard against oppression and corruption. 

 

The petitioner argues that this right is closely tied to a citizen's participation in the democratic process. They must be informed of the policies and actions of the state in order to make informed choices during elections. Journalists play a vital part in informing the public and infringing upon the freedom of the press violates the right to know for all citizens. 

 

Further, according to the petitioner, electronic surveillance and hacking violates the freedom of speech and expression by having a ‘chilling effect’ on journalists. This effect is exacerbated by the vast surveillance capabilities of Pegasus, as it would hinder journalists from being able to communicate confidentially. In Shreya Singhal v Union of India (2015) the Court held that any state action that could have a chilling effect on free speech would have to be struck down. 

 

The Use of Pegasus Violates the Right to Privacy

The petitioner refers to the Court’s decision in K.S. Puttaswamy v Union of India (2017). Justices D.Y. Chandrachud and Sanjay Kishan Kaul in their opinions, laid down a four-step test assessing the validity of any state action under the right to privacy. Firstly, the encroachment upon privacy must be supported by a law justifying it. Secondly, the action must be driven by a legitimate aim. Thirdly, the action must be proportional to the purpose of the law. Lastly, there must be procedural guarantees against abuse by such action. 

 

The petitioner then argues that the use of Pegasus fails on all four counts. There is no legal authority that allows the use of such electronic surveillance against citizens, and this can never be a legitimate aim of the state. Pegasus also allows the attacker to take complete control of a device, which can never be considered necessary or proportionate. Further, there are no legal safeguards against spyware and electronic surveillance.