A Brief history of Pegasus and it Impact on the Right to Privacy and Surveillance laws in India

18/7/2021. That was the day the Pegasus Project revealed that the phones of thousands of prominent members of civil society across the world were targeted by, or were potential targets of the Pegasus spyware. During the course of the investigation conducted by The Wire and other international news organisations, it was found that 10 phones belonging to Indian citizens, on examination by Amnesty International’s Security Lab, contained forensic evidence of Pegasus infection and that over 300 phone numbers in the leaked list of 50,000 numbers, belonged to Indians. Tellingly, these numbers belonged to prominent journalists, student leaders, human rights activists, lawyers, an Election Commissioner, Government officials and most striking of all – Opposition political leaders.1

While the NSO Group, an Israeli company that developed Pegasus, claimed that it sells it to only ‘vetted and authorised governments”, the Government of India denied that Indian citizens had even been targeted at all and attempted to discredit The Wire’s investigation by claiming that it had no proof, despite an abundance of forensic evidence verified by Citizen Lab.2
Moreover, the Centre conveniently used the defence of ‘national security concerns to avoid providing crucial information during the recent hearing of several petitions regarding the Pegasus issue in the Supreme Court. Since both NSO Group and the Centre have NOT explicitly denied selling and purchasing/using Pegasus respectively, this appears to be an excuse to hide the facts.3

The Central Government has several legal reasons for this denial, the least of which is that such surveillance of private citizens violates their Right to Privacy, a Fundamental Right under Article 21 (Right to Life and Liberty) of the Constitution.4 This was laid down and elaborated upon in the landmark KS Puttaswamy v Union of India judgement.5 Additionally, Section 5 (2) of the Telegraph Act, 1885 states that phone calls can be lawfully intercepted by the

1 Siddharth Varadarajan, Revealed: How The Wire and Its Partners Cracked the Pegasus Project and What It Means for India The Wire (2021), https://thewire.in/media/revealed-how-the-wire-partners-cracked-pegasus project-implications-India (last visited Sep 3, 2021).
2Id
3 Nishant Sirohi, Pegasus in the Room: Law of surveillance and national security’s alibi | ORF ORF (2021), https://www.orfonline.org/expert-speak/pegasus-in-the-room-law-of-surveillance-and-national-securitys-alibi/ (last visited Sep 3, 2021).
4INDIA CONST. art 21
5 Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1.

government only in situations involving the “sovereignty and integrity of India, security of the State, public order, etc.”6 There also exists a proviso in the same section preventing the legal interception of phone calls of journalists.

Under the provisions of Section 69 of the IT (Information Technology) Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 – all electronic transmissions can be monitored and intercepted for the “investigation of an offence.”7 This broadens the scope for surveillance and dilutes the ‘public safety’ conditions laid down in the Telegraph Act. Since a record of written reasons has to be maintained to invoke both the Acts, the Government of India has in all probability failed to satisfy any of the tests to deploy Pegasus to spy on its own citizens. Hence, admitting to using Pegasus would be admitting to violating the fundamental Right to Privacy, and provisions of the Telegraph Act and the IT Act.
6 Telegraph Act, 1885 (India).
7Information Technology Act, 2000 Acts of Parliament, 2000 (India)

Chiranth S
Writer