Tl;dr
Rupesh Kumar Singh and Ipsa Shatakshi, both independent activists of repute who report on issues related to Adivasi people in Jharkhand, have approached the Supreme Court asking the Court to declare that the use of a spyware such as Pegasus is unconstitutional. They have also asked the Court to direct the Government to disclose all documents that it has related to Pegasus. Their petition was listed for hearing before the SC on 05.08.2021, and the petitioners were represented by Mr Arvind Datar, Senior Advocate. The Court issued notice to the Union Government and directed that the Union of India be served a copy of the petitions and the matter be listed early next week for further consideration. IFF has provided legal assistance to Mr Rupesh and Ms Ipsa, as well as other journalists and civil society members who have been affected by the Pegasus Spyware attack.
Background
On July 18, 2021, The Wire, as part of an international collaborative investigation titled “Pegasus Project”, revealed that the Israeli spyware firm NSO targeted “over 300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others” through their spyware, Pegasus.
The revelation was made on the basis of a leaked database accessed by Paris-based media nonprofit Forbidden Stories and Amnesty International, which contains the list of numbers believed to have been targeted by NSO. The leaked database contained the phone numbers of over 40 Indian journalists. Subsequent reporting by the Wire and the Washington Post revealed that forensic analysis conducted by Amnesty International's Security Lab definitively showed that the Pegasus spyware had been used to target 37 phones, of which 10 belonged to Indians.
The Pegasus Project has also stated that the Pegasus Spyware is installed on a phone without the victim’s knowledge, consent or even any action on their part. This is referred to as a ‘zero-click process’. Once the Pegasus Spyware attacks a phone, it allows the attacker to take control of the victim’s phone and then collect data, view contact lists, messages, WhatsApp chats, internet browsing history and even remotely control the device such as secretly turning on the phone’s camera and microphone.
Notably, NSO, according to its own website, sells exclusively to vetted government clients.
Petition by Mr Rupesh Kumar Singh and Ms Ipsa Shatakshi
Mr Rupesh Kumar Singh and Ms Ipsa Shatakshi are independent activists of repute, with over seven years of standing. They have been reporting on as well as participating in pertinent social issues such as those of displacement, the protests of the displaced people, encounters by security forces in the state, and the massive arrests of Adivasi community, framed as Maoists in the state of Jharkhand. Both of their phone numbers are in the leaked database. However, as of the date, it has not been verified whether their phones were attacked with the Pegasus Spyware.
Mr Singh and Ms Shatakshi have approached the Supreme Court asking it to declare that the use of spyware such as Pegasus, is unconstitutional. They have also asked the Court to direct the Government to disclose all documents related to its use of Pegasus. In their petition, they have stated that the entire incident has psychologically traumatised them, and left them constantly wondering whether they are being surveilled through their mobile phones, computers or even in real life.
They are also unsure whether their conversations with sources and publishers are being monitored; and whether there is a threat to their life and physical safety, not just of themselves, but also their family members and those they regularly contact for work related matters. As such, the use of Pegasus against both of them, violates their right to privacy, right to freedom of speech and expression, and their right to life.
The Petitioners also pointed out that the Government has not taken any steps to remedy the situation, and instead has denied the reports by Pegasus Project as one by “disruptors for the obstructors”. They argue that the government has failed its positive obligation, as recognised in K.S. Puttaswamy vs Union of India, to protect the privacy of Indian citizens, especially since the use of Pegasus involves hacking, and violates several provisions of the Information Technology Act, 2000.
They have also argued that the use of Pegasus in a manner which does not provide them any details regarding the perpetrators, the extent and the duration of the attack also violates their right to know, which is guaranteed under Articles 19(1)(a) and 21 of the Constitution. The absence of such information also prevents the Petitioners from holding the government accountable, in case the Indian Government has authorised the use of Pegasus against them.
Proceedings in Supreme Court
Several petitions were heard today, and submissions were made by Senior Advocates such as Mr. Kapil Sibal, Mr. Chander Uday Singh, Ms. Meenakshi Arora, Mr. Shyam Diwan, Mr. Rakesh Dwivedi, and Mr. Arvind Datar
The petitioners, Mr. Singh and Ms. Shatakshi, were represented by Senior Advocate Arvind Datar, Prateek Chadha, Mihir Naniwadekar, Vrinda Bhandari, Tanmay Singh and Krishnesh Bapat.
We thank Mr Rupesh Singh and Ms Ipsa Shatakshi for granting us an opportunity to provide legal assistance to them. We are similarly grateful to other journalists and civil society members who sought our expertise. We thank the lawyers who worked on this case, especially Senior Advocate Arvind P. Datar, who has led the legal team.
We also thank Senior Advocate, Mr. Rakesh Dwivedi for leading on Mr. SNM Abdi’s and Mr. Prem Shankar Jha’s petition, and advocate Eklavya Dwivedi for providing valuable legal assistance on the matter.
We will keep you updated on the next date of hearing.
Important Documents
- Writ Petition filed by Mr Singh and Ms Shatakshi (link)
- IFF’s Statement on hacking revelations made by the Pegasus Project (link)
- Personal Data and Information Privacy Code Bill, 2019 introduced in Parliament (link)
- IFF’s Surveillance Reform PIL (W.P. Civil No. 44 of 2019) (link)
- “Read: NSO Group's Response to the Pegasus Project and Our Take” published in The Wire dated July 18, 2021 (link)