Can State governments in India buy Pegasus? #InvestigatePegasus

tl;dr

Below, we take a look at where various states and the respective state governments stand with regard to the Pegasus revelations made in July 2021. We also take a look at the various inquiries that may have been initiated as a fallout from the revelations.  

Why should you care?

The Pegasus revelations demonstrated a need for urgent surveillance reform to protect citizens against the use of such invasive technologies which hamper their fundamental right to privacy and threatens the democratic ideals of our country. It has been used against constitutional functionaries such as an Election Commissioner, a Supreme Court Judge and members of Parliament but most disturbingly against activists and journalists. Use of such surveillance technology on journalists has a chilling effect as it precludes them from working and reporting on sensitive matters, some of which may also be against the ruling government, without jeopardising themselves and the personal safety of their sources. It also stops human rights defenders from working with vulnerable people, some of whom may have been victimised by their own government, without opening them up to further abuse.

Can State governments in India even buy Pegasus?

The NSO Group, on its websites, has stated it only deals with governments and government agencies. Further, Israeli law requires an export permit granted by the Isreali Defence Export Control Agency, as per an opinion provided to Novalpina Capital for legal due diligence by a lawyer, Daniel Reisner from the law firm of Herzog Fox and Neuman on May 13, 2019. In paragraph 10, it explains the entire licensing process which commences from an entity licence, then a marketing permit and finally an export licence. Hence, specific oversight is administered by a government agency under the Government of Israel (Link to legal opinion).

When the Pegasus revelations were made in 2021, the Central Government stated that “no unauthorised interception has been done" but did not provide a clear response as to whether they purchased and used Pegasus. While this question is currently being inquired into by the Supreme Court, one question that arises is this: can State governments in India procure and deploy Pegasus? As per the Seventh Schedule of the Constitution of India, which specifies the allocation of powers with regard to specific subjects between the Central and the State governments, ‘Police’ and ‘Public Order’ are State subjects. Thus, the primary responsibility of prevention, detection, registration, investigation, and prosecution of crimes lies with the State Governments. Further, State governments are also authorised to conduct targeted surveillance under the current surveillance framework in India, which consists of Section 69 of the Information Technology Act, 2000 and Section 5(2) of the Indian Telegraph Act, 1885. Therefore, it would not be incorrect to assume that State governments in India may have sought to procure advanced surveillance technology such as the Pegasus spyware.

In light of this, it becomes important for us to examine where various State governments stand with regard to the Pegasus revelations to understand the present situation comprehensively. Unsurprisingly, reactions to the Pegasus revelations fall within partisan expectations. State governments which are of the Bharatiya Janata Party (BJP), which is also at the Centre, have questioned the veracity of the claims made in the Pegasus revelations. On the other hand, the State governments which are non-BJP, have called for inquiries based on the revelations and have condemned the use of Pegasus.

Pegasus in the states

A. Andhra Pradesh

On March 17, 2022, the Chief Minister of Bengal Mamata Bannerjee alleged that the Telugu Desam Party (TDP) government in Andhra Pradesh had acquired Pegasus during its tenure (Link to the Times of India report dated March 18, 2022). The TDP was in power in the State of Andhra Pradesh from 2014-2019. These statements caused a ruckus in the Andhra Pradesh State Assembly on March 21, 2022. Officials of the current Yuvajana Sramika Rythu Congress Party (YSRCP) government expressed their concerns about whether the previous government had illegally surveilled members of the YSRCP and demanded that the actions of the previous government be investigated. As a result, the Andhra Pradesh State Assembly passed a resolution to set up a committee to investigate whether the TDP had acquired and used Pegasus during its tenure (Link to the Indian Express explainer on the issue dated March 22, 2022).

However, the TDP has denied the allegations made by Bannerjee and YSRCP (Link to Times of India report dated March 19, 2022). The TDP national general secretary Nara Lokesh clarified that while the TDP government was offered to buy Pegasus, they had rejected the offer (Link to the Hindu report dated March 18, 2022).

B. Assam

The Assam Chief Minister Himanta Biswa Sarma (BJP) has called the Pegasus revelations an international conspiracy to defame India and Prime Minister Narendra Modi (Link to Hindustan Times report dated July 20, 2021). Further, he has also called for a ban on Amnesty International for its involvement in perpetuating, what he has termed as, the “Pegasus conspiracy” as Amnesty international had conducted an forensic examination to verify the Pegasus revelations (Link to the Hindu report dated July 20, 2021).

C. Bihar

The Bihar Chief Minister Nitish Kumar (Janata Dal (United) or JD(U)) has stated that a detailed inquiry into the Pegasus revelations is necessary to bring out the truth of any such ongoing illegal surveillance in the country (Link to Hindustan Times report dated August 2, 2021).

D. Chhattisgarh

The Chhattisgarh Chief Minister Bhupesh Baghel (Indian National Congress or INC) has stated that the (alleged) purchase and use of Pegasus by the Central Government is an “act of treason” (Link to the New Indian Express report dated January 29, 2022).

In 2019, it was reported that Pegasus was used to target the WhatsApp applications of 121 Indian citizens out of which 20 were successfully hacked. Out of the 20 Indian citizens who were successfully targeted through the spying software, a significant number were mainly residing in the states of Chhattisgarh. As a result, the government had ordered a probe by a three-member committee into the allegations (Link to the Hindu report dated November 11, 2019). However, there has been no information with regard to the progress made by the committee.

E. Haryana

The Haryana Chief Minister Manohar Lal Khattar (BJP) has questioned the credibility of Amnesty International, while alleging that Amnesty International was in cahoots with certain entities that want to lower the prestige of India and the Indian government (Link to Hindustan Times report dated July 20, 2021).

F. Karnataka

As part of the Pegasus revelations made in July 2021, the Wire alleged that surveillance may have played a role in the toppling of the Janata Dal (Secular) - Indian National Congress coalition government in Karnataka in 2019, a series of events also referred to as “Operation Lotus” (Link to the Wire report dated July 20, 2021). According to the report, the phone numbers of deputy chief minister G. Parameshwara and the personal secretaries of chief minister H.D. Kumaraswamy and former chief minister Siddaramaiah were part of the database believed to be a list of possible Pegasus victims. As a result, Siddaramaiah wrote to the Union government through the President’s secretariat, alleging that he had been a target of illegal surveillance. Subsequently, the President’s secretariat referred the matter to the Ministry of Home Affairs which then transferred the matter to the Karnataka government (Link to Indian Express report dated November 8, 2021).

G. Maharashtra

Following the July 2021 Pegasus revelations, the ruling government in Maharashtra, which consists of a coalition of the Shiv Sena, INC, & the Nationalist Congress Party (NCP) raised questions about the actions of the previous Devendra Fadnavis led BJP administration in the state. Specific concerns were raised about an Israel tour of 5 senior officials of the director-general of information and publicity (DGIPR) that took place in November 2019 (Link to Hindustan Times report dated July 21, 2021). Questions about the tour and its purpose were also the subject of a public interest litigation (PIL) filed in the High Court of Bombay (Link to the Wire report dated August 6, 2021). In the PIL, it has been alleged that the tour, which took place in the absence of the requisite permissions, was for the purpose of acquiring Pegasus.

H. West Bengal

In light of the Pegasus revelations in July 2021, the Government of West Bengal had set up a two-member Commission of Inquiry to probe the veracity of the allegations made on July 26, 2021 (Link to the Hindu report dated July 26, 2021). On August 3, 2021, the Commission issued a public notice calling for statements on the Pegasus revelations. However, on August 25, 2021, the Government of West Bengal told the Supreme Court that the Commission of Inquiry, headed by retired Supreme Court Judge Justice Madan B Lokur, will not proceed until the apex court hears petitions seeking a probe into the alleged surveillance scandal as well as those challenging the state government’s decision to appoint the commission (Link to the Indian Express report dated August 25, 2021). Subsequently, on December 17, 2021, the Supreme Court stayed all proceedings of the Commission of Inquiry (Link to the Times of India report dated December 18, 2021). While this seemed to have halted Pegasus related developments in West Bengal for some time, the issue picked up steam again on March 17, 2022, when the Chief Minister Mamata Bannerjee (Trinamool Congress) stated that Pegasus was offered to the West Bengal Police for 25 crores INR five years ago, though, the West Bengal Police did not buy it (Link to Hindustan Times report dated March 18, 2022).  

Pegasus at the Centre

On October 27, 2021, the Supreme Court had set up a Technical Committee to:

  1. enquire, investigate, and determine whether Pegasus was acquired by the Union Government or any State Government, and whether the spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversation, intercept information and/or any other purpose; &
  2. make recommendations regarding enactment or amendment to existing law around surveillance to secure the right to privacy as well as regarding establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of orders.

The Technical Committee had subsequently sought responses with regard to these questions from subject-matter experts as well as the general public (Link to the response submitted to the Technical Committee by IFF’s Executive Director Apar Gupta dated March 17, 2022). Currently, the report of the Technical Committee is awaited.

The above shows clearly that while there is a need for continuing focus on the Union Government, the scope of the inquiry should also similarly focus on the role of State Governments who may have acquired this illegal spyware.

Important documents

  1. Our Response to the SC’s Technical Committee on Pegasus dated March 17, 2022 (link)
  2. Read more on IFF’s advocacy around #Pegasus (link)