Pegasus: Petition Summary (Rupesh Kumar Singh and Ipsa Shatakshi)

This petition has been filed by Rupesh Kumar Singh and Ipsa Shatakshi who are journalists and human rights activists working on issues that include the rights of adivasis and persons displaced by development projects. 

 

In July 18th 2021, The Wire published an article containing a list of journalists, politicians, and judges who were allegedly being surveilled by the Indian government using a spyware called Pegasus.  

 

On the basis of this report, the petitioners have filed this writ petition under Article 32 of the Constitution of India, 1950 and arguing that their right to privacy has been violated. 

 

What do the petitioners seek?

Given the nature of their work, the petitioners are worried that such surveillance not only puts their confidential sources at risk, but also discourages investigative journalism. Further, they are concerned that they and their families may be at risk of vindictive action by persons who the petitioners have done stories on.  

 

The petitioners have asked for:

  1. A declaration from the Court that the use of spyware such as Pegasus is illegal, unconstitutional and violates fundamental rights under the Constitution. 

  2. An order directing the Union to disclose all relevant information about the use of Pegasus.

  3. An order instructing the Union to take action to protect Indian citizens from the use of cyber weapons such as Pegasus.

  4. An order directing the setting up of a mechanism to lodge complaints about breaches of privacy, and punish all government officials found guilty.

 

Grounds

Pegasus Surveillance violates The Information Technology Act, 2000

The petitioners have alleged that the use of Pegasus violated various provisions under the Information Technology Act, 2000 (sections 43, 66B, and 72). These provisions address hacking, using stolen data and breaches of privacy of electronic and computer sources.  They argue that while Section 69 of the Act permits certain surveillance, the government’s use of Pegasus does not meet this criterion. 

 

Pegasus Surveillance Violates The Whistle Blowers Act, 2014

The petitioners argue that the Pegasus surveillance breaches the Whistle Blowers Protection Act, 2014, given the sensitive nature of their work. A whistleblower is someone who exposes information about illicit activities that are harmful to the public. Often, this work is done undertaking great personal risk, given the confidential or otherwise hidden nature of the information, as well as the possible negative impact on society.  The petitioners are not only journalists but also human rights activists, and their work involves interacting with sources who could be at risk if their identities are revealed. 

 

Pegasus Surveillance violated The Rights to Life, Liberty and Free Speech

Courts around the world are recognising the importance of privacy in an increasingly data driven world. The US Supreme Court recognised that phones are an ‘extension’ of a person’s being. Further, the 2017 Right to Privacy judgment reiterated Justice Subba Rao’s dissenting opinion in Kharak Singh v the State of Uttar Pradesh which stated that surveillance, particularly that conducted illegally, has a ‘chilling effect’ on the minds of the people; it inhibits free thinking. 

 

The Justice Srikrishna Committee Report pointed out that India lacks ‘sufficient legal and procedural safeguards’ for the protection of civil liberties. The petitioners rely on these arguments to claim that their fundamental rights under  Articles 19 and 21 have been violated. The Committee was constituted soon after the 2017 Right to Privacy judgment to  examine the current provisions for data protection in the country, and suggest measures to strengthen them.

 

Union is Responsible for the Pegasus Surveillance

The petitioners acknowledge that the Union has neither confirmed nor denied that they were responsible for the surveillance. The petitioners have relied on the statement of the NSO Group, in which they say that Pegasus is only sold to governments. So, they argue that the Union Government is likely to be the source of the surveillance. 

 

Even if the Union Government is not the source, they argue that the Union must take action to identify the source of the surveillance, given the seriousness of its implications.