Make no mistake. The Pegasus spyware, contrary to claims made by its Israeli manufacturer, is a lethal secret weapons grade spyware used to oppress peoples by rogue governments around the world. It is very advanced and is capable of infecting any mobile phone or device without any interaction with the owner. It can conduct extremely intrusive surveillance. The NSO group, which manufactures the product, claims that it sells its products only to vetted governments to fight crime and terrorism, as if the private company operating solely for profit is some benevolent super world government!
The global investigation in which a number of publications, including The Wire from India participated, has revealed that the Pegasus software had been used by clients of NSO group namely, India, Kashakstan, UAE, Bahrain, Saudi Arabia, Rwanda , Hungary, Azerbaijan, Moroco and Mexico to conduct mass-scale invasive surveillance of politicians, human rights activists, journalists and dissidents.
In India, such targeted surveillance is a violation of the fundamental right to privacy under Article 14, 19 and 21 of the Indian Constitution. It also seriously compromises the fundamental right to free speech and expression guaranteed under Article 19. It further violates the Telegraph Act under which surveillance can be carried out only in the case of public emergency or in the interest of public safety.
In spite of the revelations, including publication of the names of more than 200 politicians, journalists, constitutional functionaries whose phones have been hacked, the Government of India has so far not accepted it ever used the Pegasus spyware. In fact no democratic government will accept that it indulged in such illegal and undemocratic activity.
Under the circumstances what remedy is available to the ordinary citizen? When the attack on fundamental rights of the citizen is from the union government, that too employing high-tech surveillance tools, there is very little the citizen can do.
But, fortunately for us, ours is a federal constitution and the states enjoy enormous powers even to question and confront the union government in case of serious violation of basic principles of democratic governance.
That is exactly what Mamta Banarjee, the West Bengal Chief Minister, has done by appointing a Commission of Enquiry to examine the allegations of surveillance of phones by using the Pegasus spyware developed by the Israeli cyber-intelligence outfit the NSO group.
Retired Supreme Court judge Justice Madan B. Lokur and former Chief Justice of Calcutta High Court Justice Jyotirmay Bhattachrya have been appointed members of the Commission. Following a special meeting of the West Bengal Cabinet on July 26, Mamta Banarjee said: “The Cabinet has approved the appointment of a commission of enquiry consisting of Hon’ble Justice M.B.Lokur, retired justice of the Supreme Court, and the Hon’ble Justice Jyotirmay Bhattacharya, retired Chief Justice of Calcutta High Court, in exercise of the power under Section 3 of the Commission of Inquiry Act 1952, in the matter of the widely reported illegal hacking monitoring , putting under surveillance tracking and recording of mobile phones of various persons in West Bengal.”
Under the Commissions of Inquiry Act both the Union and the States can institute a probe. The commission has been given six months to submit its report.
Meanwhile, two senior journalists based in Tamil Nadu, N.Ram of The Hindu and Sashi Kumar of Asian College of Journalism have moved the Supreme Court seeking an inquiry by a sitting or retired judge of the Supreme Court in to the allegations of use of Pegasus spyware for surveillance of politicians journalists bureaucrats and activists.
The petition said that such targeted surveillance using military-grade spyware is gross invasion of privacy laws. The use of the Pegasus spyware is a direct attack on communicational, intellectual, and informational privacy, and critically endangers the meaningful exercise of privacy in these contexts the petition pointed out.
It urged the court to direct the government to disclose whether any agency of the government had obtained licence for the Pegasus spyware and employed it directly or indirectly for surveillance of politicians , government ministers , journalists and activists.
Advocate M.L. Sharma and CPI (M) member of Rajya Sabha John Brittas have also filed petitions in the Supreme Court seeking a probe into the allegations of unauthorised use of Pegasus spyware for surveillance.
Quoting media reports on the use of the Israeli spyware for unauthorised surveillance, Sharma’s petition said “The Pegasus scandal is a matter of grave concern and a serious attack upon Indian democracy judiciary and the country’s security.”
Most governments, both dictatorial as well as democratic, justify surveillance in the name of national security. However, how can one be sure that spyware acquired from a foreign power can be safely used? What guarantee is there that the information collected through the spyware in the name of national security will not be sold to our enemies by the creators of the spyware?