Pegasus petition in SC calls for criminal charges against government agents

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This is one of many motions filed in the Supreme Court to request an SIT investigation into the Pegasus revelations.

A lawsuit filed by Jagdeep Chhokar *, co-founder of the Association for Democratic Reforms (ADR), before the Supreme Court called on the Union government to take punitive measures against its officers responsible for the alleged surveillance through Pegasus spyware. The Union government is the respondent in the petition.

“… to take exemplary punitive measures, including criminal prosecution against the officers and agents of the defendant who were in charge or responsible for the supervision of the applicant”, reads the application filed by lawyer Rahul Narayan on 2 August 2021.

Chhokar was one of the 300 Indians is on the disclosed list of more than 50,000 potential surveillance targets (via Pegasus) by government customers of the NSO Group.

Why is this important? Given the seriousness of the Pegasus revelations exhibited by a consortium media outlets, many fear that surveillance threatens to erode the sanctity of freedom of speech and expression in a constitutional democracy like India. the ONS Group has explicitly stated that spyware is only allowed to controlled governments and their agencies.The Center has evaded questions about purchasing and using Pegasus whenever it has been asked to respond to Parliament. Moreover, the government has not ordered an investigation into the case even though countries like France have moved quickly to investigate the allegations made by the consortium.

Petition prayers

The petition, a copy of which MediaNama has seen, asks the court to:

  • Declare that he ultra vires Constitution: The petition wants the court to declare that actions on the part of the state and its agents must be watched as being beyond the legislative scope of the Indian constitution.
  • Violation of Articles of the Constitution: The tribunal must consider the use of any spyware, including Pegasus, to intercept communication devices for any of the applicant’s purposes as a violation of Articles 14, 19, 20, 21 and 22 of the Constitution of India
  • State surveillance against Indian citizens: It must be authorized by law and must be “limited in scope, duration and purpose, and must in no case be authorized or deployed indiscriminately, indefinitely or disproportionately”.
  • Abstention: The government and its departments should “immediately refrain from using, authorizing, deploying, purchasing and / or renewing licenses for any spyware,” including Pegasus to monitor citizen communications devices indians
  • Prior judicial authorization: Oblige the government to “establish a mechanism for prior judicial authorization of any action akin to surveillance for purposes affecting the interests of the sovereignty and integrity of India, etc.”
  • Investigation task force: A TIS to investigate the alleged purchase, use and deployment of any malicious software, including Pegasus, by the Government of India or its agencies on computer resources and communications devices owned by Indian citizens.
  • Three former SC judges at the head of the SIT which must be charged “with the responsibilities and duties of investigation, initiation of prosecutions and prosecutions”.
  • The SIT must declare to and inform the Court of all major developments by filing periodic status reports
  • Extend the cooperation of all agencies, government departments and agents, at the central government level as well as state governments, including all statutory and other constitutional bodies, at SIT.
  • Financial and technical support to be provided by the Union and state governments to facilitate the conduct of SIT surveys.
  • The highest consideration must be granted to the fundamental rights of the persons concerned, including their right to privacy by the SIT investigation.

The grounds on which the petitioner pleads

The petition contends that “the government’s involvement and inaction in the infiltration of Pegasus against the petitioner, in particular and more generally against Indian citizens, is unconstitutional and in violation of Part III rights”.

High crime against democracy: The petition states that “the deployment of the Pegasus malware is of a criminal nature with the aim of subverting democratic actors, the integrity of democratic institutions and constitutes a serious crime against democracy. To arm surveillance against all citizens amounts to an abuse of the state’s monopoly on the legitimate use of force.

The petition stated that the use of spyware constitutes statutory offenses under:

  • Article 43 (sanction and compensation for damage caused to the computer, the computer system, etc.)
  • Article 66 (computer-related offenses)
  • Section 66B (punishment for dishonest reception of a stolen computing resource or communication device)
  • Article 66E (sanction for invasion of privacy)
  • Section 66F (punishment for cyberterrorism) of the Computer Law of 2000
  • Criminal trespassing under section 441 of the Indian Penal Code, 1860.

Limited government: The petition attempts to highlight two aspects regarding the doctrine of limited government:

  1. The state cannot collect information “relating to all aspects of a citizen’s life and then dominate that individual based on that information”.
  2. The constitutional role of government is that of a benevolent and benevolent state, not a police or authoritarian state.

The petition said that “there are some things the state simply cannot do because action fundamentally changes the relationship between citizen and state.” “Every citizen has the right to engage in an individual, personal, social, political and cultural activity without the State being aware of each of its movements,” he added.

Illegal detention: The petition says the surveillance made possible by the Pegasus spyware puts citizens under constant and illegal state detention, turning India into a panopticon-style geographic prison. It ignores the presumption of innocence. She further added that such detention is unconstitutional and violates the fundamental right guaranteed by article 22.

Digital Infiltration and Surveillance State: According to the petition, the establishment of a surveillance state is prohibited by Articles 14, 19, 20 and 21 of the Indian Constitution.

  • “The imposition of widespread, excessive and excessively intrusive infiltration measures exaggerates this crippling effect on the ability of peoples to exercise their right to freedom of thought, speech and expression.
  • “Under Article 13 (2) of the Constitution of India, the state can never pass a law authorizing the use of Pegasus against Indian citizens. at a minimum, the state has a positive obligation to protect the data of its citizens, even when there is a legal measure allowing access to such data.

Government hacking is unconstitutional: The petition stated that government piracy is prohibited under statutory provisions (Article 43 of the Information Technology Act, 2000) and under international human rights law.

“Deploying this malware against Indian citizens amounts to government hacking, which is a state crime against citizens and can never be necessary or proportionate.”

He also said the United Nations called on states in 2018 not to use illegal surveillance techniques, including hacking, in a General Assembly resolution on the right to privacy in the digital age.

Right of the citizen to know the truth: The petition stated that the right to know the truth is available to all citizens under Articles 19 and 21 of the Indian Constitution.

National security compromise: The petition argues that the use of Pegasus against Indian citizens “seriously compromises national security by allowing private data of Indian citizens to be viewed by foreign companies and foreign governments who may use and exploit such data against the interests of individuals as well as against national security. interest. ”

Dignity and right to privacy: “The right to privacy is essential for the exercise of all the rights guaranteed by Part III of the Constitution. “

  • She cites examples of cases in which the Court overturned indiscreet and unreasonable surveillance measures:
    • Kharak Singh v. State of the UP (1964)
    • Gobind v. Indian Union (1975)
    • PUCL v. Indian Union (1997)
  • “When an individual seeks to preserve something as private and their expectation of privacy is one that society is prepared to recognize as reasonable, an official intrusion into this sphere is characterized as a search and requires the authority of a valid law and a legitimate state objective, “read the petition.
  • The petition demands that the law that allows the extraction and collection of such private information be clear and precise in describing the purpose for which the information is collected and the effect of such collection, storage and use.

Lack of executive responsibility:

The petition claims-

  • “The executive can infiltrate the lives of prominent public figures, constitutional officials and its citizens, without any checks and balances outside the executive wing of government,” calling the exercise “patently arbitrary and devoid of any governing principle. adequate”.
  • “India’s legal framework for digital interception also falls short of basic principles governing state surveillance globally. Indian law is vague, gives too much leeway to the executive, and provides for intrusions on the right to privacy and freedom of expression that are neither necessary nor proportionate.
  • “The respondent’s transgressions, illegalities and blatantly unconstitutional behavior are due in part to the absence of a legal framework governing
    • ministries and government agencies responsible for oversight
    • the concept of national security ”
  • “A statutory framework comprising the requirement of a judicial mandate, parliamentary oversight and disclosure, and which adheres to the principles of necessity and proportionality, where necessary. ”

Other Pegasus applications filed with the Supreme Court

  • Lawyer ML Sharma was the first file a petition before the Supreme Court which urged the court to set up a TIS to investigate the purchase and use of Pegasus spyware.
  • Rajya Sabha CPI (M) Deputy John Brittas filed the second PIL demanding an immediate investigation monitored by the SC because the central government had not ordered an investigation despite appeals from the opposition and civil society.
  • Editors N Ram and Sashi Kumar deposit the the third petition asking the court to order the Center to recognize the use of Pegasus and to conduct a judicial investigation.
  • Five journalists—Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh and Ipsa Shataksi— prayed for the court to ban the use of Pegasus spyware in the country in their motions. He also called for a judicial oversight mechanism to regulate future state oversight efforts.
  • The Indi Publishers Guildlike petition argues that citizens have a right to know whether the government is responsible for the use of cyber weapons like Pegasus and that surveillance facilitated by spyware violated press freedom.

* Disclaimer: Jagdeep Chhokar is linked to Nikhil Pahwa, the founding editor-in-chief of MediaNama.

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