PEGASUS : The art of suppressing dissent

This Article is written by Anna Mariam Ramacha Thykkadavil, a 1st Semester, 3 year Unitary LLB student at Government Law College Thiruvananthapuram. This article critically analyses the Pegasus case and its Constitutional implications.

INTRODUCTION

The mythical winged horse of the Greek mythology- the Pegasus, which escaped miraculously from death has been assigned a new form – the surveillance tool for governments across the world. As the Nigerian based blogger-cum-psychologist Olawale Daniel suggests, “the most dangerous and powerful people in the world do not carry guns or shoot missiles, they write code to surveil and suppress the opposing views.” True that, the world is constantly snooping and peeping into each other. The nosiness has increased through the internet, that even governments have turned to taking up illicit means to spy on most of their counter figures.

RISE OF NSO

As two Israeli entrepreneurs Shalev Hulio, Omri Lavie, from a start-up providing mobile operators, the access to users’ mobile phones to give tech support, joined Niv Carmi-a former Mossad(one of the intelligence agencies of Israel) intelligence operative and security expert, they created NSO (the trio-Niv, Shalev and Omri) in 2010; they made history in criminal investigations, tracking criminals and perverts; eventually found punching hard on the right to privacy of people across the globe. NSO developed and marketed Pegasus, which is a spyware entering the mobile phones without the knowledge of the mobile operator or developer or even the user. Initially, the spyware had taken the spear phishing model, later advanced into zero-click spyware. NSO grew with this technology by helping governments worldwide to enforce investigations and solving crimes. This malicious element enters the criminals’ phones and any data can be harnessed from the device like encrypted chats, files, text message, calls, app activity and can capture screenshots. It has been recognized as the most sophisticated spyware available in the world today.

THE SCANDAL

In 2016, the iPhone of an Arab Human Rights Activist was hacked. Since then Pegasus continued to be a watchdog of many countries. India has been found to be using the service of NSO to search for many criminals and offenders, even using it for national security reasons. In July 2021, Amnesty International, Forbidden Stories and 17 media published reports of a leaked database unleashing the elephant in the room- a list of almost 50,000 potential targets to be snooped upon and the results were unpleasant. Many activists, journalists, governments, political leaders like French President Immanuel Macron, Pakistan’s Prime Minister Imran Khan, South African President Cyril Ramaphosa, WHO Director General Tedros Adhanom Ghebreyesus, former Lebanese Prime Minister Saad Hariri, King Mohammad VI of Morocco etc…were among the international targets. Around 300 significant personalities were under surveillance in India and the Supreme Court has even ordered those findings themselves in the same to report it. Some of them being politicians like Rahul Gandhi, Sachin Rao, lawyers like Hany Baby M.T, Anand Teltumbde, former student politicians like Umar Khalid, Anirban Bhattacharya, Naga leaders, health sector involved personalities, CBI officials etc.

NSO sticks to the statement that it has only assisted the governments through its tech. India is also on the list of the countries using its service. Analyzing the pattern of those in the list, most of them are in the groups against the ruling party’s agendas, like Rahul Gandhi, Umar Khalid, etc… The indecent way of spying on the citizens themselves is a crackdown on the ideals of the biggest democracy in the world. In the era where non-state actors are playing their game with the data of people worldwide; where the State itself sues social media companies for infringing data privacy, the fact that the same is being used by the State to track their own citizens, especially the dissidents, is quite fatal.

RIGHT TO PRIVACY

Right to privacy may be defined as a human right enjoyed by every human being by virtue of his or her existence including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think. Article 12 of Universal Declaration of Human Rights, 1948 and Article 17 of International Covenant on Civil and Political Rights (ICCPR) 1966, legally protects persons against arbitrary interference with one’s privacy, family, home, correspondence, honour and reputation. India signed and ratified the ICCPR on April 10, 1979, without reservation.

The founding fathers of the Indian Constitution was against the idea of recognising Right to Privacy as a fundamental right; but this when put before the draft sub-committee, Dr. B.R. Ambedkar, K.M.Munshi submitted articles favouring this idea.

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized…” – Dr. B. R Ambedkar

When the draft report was submitted the sub-committee categorized the right into enforceable and unenforceable right. It also upheld Ambedkar’s above said article.

“9(d) The right of every citizen to the secrecy of his correspondence. Provision may be made by law to regulate the interception or detention of articles and messages in course of transmission by post, telegraph or otherwise on the occurrence of any public emergency or in the interests of public safety or tranquillity.

But B.N Rao put forward a reservation that if no warrants are issued for searches or seizures, that may restrict the power of police to find truth and ensure justice to the aggrieved within less time. Thus, even though the right to privacy or right to secrecy of correspondence as a fundamental right was not written in the original Constitution that commenced on 26th January 1950, there was a debate over it, while the drafting of the Constitution.

JUDICIAL PRECEDENTS

There have been consistent developments in the interpretation of the Constitution through judicial precedents, especially in Article 21 of the Constitution- “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This guaranteed protection against arbitrary action of the executive but not against legislative action. Since, Maneka Gandhi v. Union of India( AIR 1978 SC 597), Article 21 protects the right to life and personal liberty not only from the executive action but from the legislative action also. Therefore, if a personal liberty is to be hampered, then there are two conditions to be satisfied- firstly, there must be a law and secondly, there must be a procedure established by law, provided that the procedure is just, fair and reasonable. Later the two conditions were interpreted in A.K Gopalan v. State of Madras( AIR 1950 SC 27) where the court held- “Law is not just an enactment, but signifying the natural justice and a law which did not comply by it could not become valid; procedure established by law protects only procedural law in India on the base of natural justice”.

Law and justice concept – Themis statue, judge hammer and books. Courtroom.

As Pegasus creeps into the private space of citizens, without their knowledge, it becomes important to understand the components of Article 21, i.e., life and personal liberty, in its detail. Kharak Singh v. State of U. P (AIR 1963 SC 1295), explains that life means more than just an animal existence; the restrictions against any provision includes all those limits and faculties by which life is enjoyed. According to Dicey, ‘personal liberty’ means freedom from physical restraint and coercion which is not authorised by law. The landmark judgment of K.S Puttaswamy v. Union of India (AIR 2017 SC 4161,4314,4315,4316) explains about privacy as a constitutionally protected personal liberty.

When Article 21 deals with the guarantee against deprivation, it is Article 19 that gives rights to protection from unreasonable restrictions. Article 19(1) gives the citizens, the right to freedom with five subsections such as right to- (a)speech and expression, (b)assembly, (c)form associations, (d)move freely throughout the territory,(e)reside and settle anywhere in India, (g)practise any profession. But when these rights are used by the citizens to express dissent towards the ruling government, there are chances of their personal liberty being violated and trampled so that their life is brought under the watch. Thus, surveillance by State or non-State actors is a violation of the right to freedom of speech and expression and of personal liberty. Before one’s ears hear what their mouth uttered, the surveillance system may tap it to be used against them and there comes the ‘anti national’ stereotyping; similar to what happened using Sedition Laws of the British era. That is why Dr B.R Ambedkar said, “by Independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter, things go wrong, we will have nobody to blame. Except ourselves…”.

Art 19(2) makes a disclaimer that the State can impose reasonable restrictions on the rights granted in Art 19(1)(a)-(g) on grounds such as security of the State; friendly relation with foreign States; public order; decency and morality; contempt of court; defamation; incitement to offence; integrity and sovereignty of India. In Govind v. State of M.P (AIR 1975 SC 1378) the court declared that- “surveillance only of persons against whom reasonable materials exists to include the opinion that they show a determination to lead a criminal life”. Similar interpretation was done in Malak Singh v. State of Punjab (AIR 1981 SC 760) the court held that- “the rule of natural justice was not attracted so long as surveillance is for the purposes of prevention of crimes and a person cannot complain against the inclusion of his name in the surveillance register. But, here a clause of protection is provided that if the surveillance of a person who does not have a criminal background, its validity may be challenged as infringement of The Right of Privacy of a citizen as it is a fundamental Right to Personal Liberty under Article 21.

If these are used against the citizens flawlessly for ‘unreasonable reasons’ as in the case of Father Stan Swamy. This points to how the alleged technical evidence, of him being in connection with Maoists, did really sneak into his computer. There is a huge concern in this regard over the technological hazard- the Pegasus eyes. Questioning the government results in people getting hinged with any kind of cases on national security and finally ends up in arrests by Central Agencies. When many human rights activists and political activists got arrested under Elgar Parishad case, we came to know how executive action is taking power, from legislative clauses, deviate from democratic ideals of the country; as suddenly an incriminating document arises in the computer of the accused owing connections with anti-national sources and arrests are immediate. The close nexus between these digital encroachments and the UAPA (Unlawful Activities (Prevention) Act) becomes a major threat of this century. The root cause of all these, is the close surveillance on common citizens.

In People’s Union for Civil Liberties v. Union of India (AIR 1997 SC 568) the Supreme Court held- “section 5 (2) of Indian Telegraph Act 1885 which authorized the Central Government or the State Government to tap telephone was a serious invasion of an individual’s right to privacy which is part of the Right to Life and personal liberty, enshrined under Article 21 of the Constitution and it should not be resorted to by the state, except in case of requirement of public emergency or in the interest of public safety.” Here public safety means the state or condition of grave danger or risk for the people at large. But often the ambit of public safety is used fraudulently by the State itself to track and tap the influencing personalities of the nation.

NSO replies on its website, “any claim that a name in the Pegasus target or potential target is erroneous and false; and that they will thoroughly investigate any credible proof of misuse of its technologies, as we always had and will shut down the system when necessary; also it will continue its mission of saving lives, helping governments around the world, prevent terror attacks, break up paedophilia, sex and drug trafficking rings, locate missing and kidnaped children, locate survivors trapped under collapsed buildings, and protect airspace against disruptive penetration by dangerous drones..”

CONCLUSION

Tushar Mehta, Solicitor General of India, representing the government in the Pegasus case before the Honourable Supreme Court, said, lawful interceptions are permitted under law to prevent terrorist activities, adding “whether it’s done through which software etc.., can’t be a matter of public debate.” Bringing the actions of the government under the scope of ‘sensitive information’, every secret agenda of suppressing dissent deteriorates the democracy of India.

If the software spies on the citizens to take the opposer into detention, then that was not the kind of India our Constitution makers dreamt of. If Art 19 (2) is misused to degrade the purity of Article 19 (1)(a)-(g) and hamper Article 21 then there is ultimate use of the Constitution as a weapon to enforce vested interests. Then it is urgent to be reminded of Ambedkar, as he warned us that he will be the first to burn the Constitution, if he finds it to be misused by any.