Judiciary can help Pegasus victims: ex-judge, activists

Targets of unauthorised snooping may get a cold shoulder from the government, but they can approach the courts

Victims of unauthorised snooping have a good chance of getting redressal from the courts, experts Metrolife spoke to said.

Justice H N Nagamohan Das, retired judge of the High Court of Karnataka, says that privacy, although not mentioned in the Constitution, is now recognised as a fundamental right.

“The right to speech and expression includes the right to privacy, so any attack on this privacy is an offence,” he told Metrolife.

Those affected can approach the courts and seek a writ of mandamus.

“The court will direct the government to hold an inquiry to fulfil its duties. We saw such a mandate in the case of the deaths in Chamarajanagar for want of oxygen. An inquiry was held and the families were compensated,” he says.

Over the decades, governments have passed draconian laws such as the Preventive Detention Act, the Unlawful Activities (Prevention) Act, Maintenance of Internal Security Act (MISA) and the National Security Act, all of which have been misused for political gain, he observes.

“These have been used against political parties and opponents within their own parties, artists, thinkers and journalists. Rampant misuse is still on, as those who raised their voice against the Citizens’ Amendment Act and the new farm laws were branded as terrorists and anti-national. If seeking justice becomes anti-national, then it is a worrisome situation,” he says.

‘Abuse of power’

Salil Shetty, recently appointed vice president, Global Programs of The Open Society Foundations, feels judicial intervention is inevitable if the government is not ready to answer questions on the floor of the house.

“This time the regime is in big trouble. They will go all out to go on the offensive and divert attention. But there is no alternative to a full independent judicial probe overseen by the Supreme Court on this shocking revelation. The right to privacy is sacrosanct and using national security is an excuse that all regimes, particularly authoritarian ones, use to legitimise their abuse of power. The solution in any self-respecting democracy is no surveillance without transparency of process and without legislative and judicial oversight to prevent excesses by the Executive,” he told Metrolife.

“If they have such a blanket idea of who is a terrorist and who is not then it should be out in the open. They have their own definition of national security, depending on their convenience. This is a complete abuse of power,” he adds.

Rights breached

Anushka Jain, associate counsel (surveillance and transparency), Internet Freedom Foundation, Delhi, says the problem is compounded since the government is in the dock.

“If private actors were doing this, the government could protect citizens, but in a situation where the government itself is spying on its citizens, it becomes a huge breach of privacy and fundamental rights,” she told Metrolife.

In 2019, WhatsApp had a vulnerability through which Pegasus got into the phones of citizens. “But now they can access a device by just sending a link to a phone,” she says.

Public interest technologist Anivar Aravind says the new snooping cases “are paved upon the inaction by the Indian authorities” when such invasions came to light in 2019.

“This is like authoritarian government surveillance, where citizens cannot do much against it,” he says.

Siji Malayil, advocate, says if the executive is not deemed fit to investigate the matter in a fair way, then the courts can step in and constitute a Special Investigation Team (SIT).

He feels the investigation into the Pegasus case should be monitored by a court and no Central agency should be involved.

Police kowtow to politicians

A request for lawful interception of electronic communication can be made under Section 5(2) of Indian Telegraph Act,1885 and Section 69 of the Information Technology Act of 2000. Senior police officers are given the powers to tap into telephone conversations of those against whom they have enough evidence to suggest that they are a threat to national security. “But unscrupulous police officers pass on the phone numbers of politicians and get the service providers to tap their conversations and monitor their WhatsApp conversations,” a senior police officer says.

Hacking, an offence

Hacking is a criminal offence under the Information Technology Act. “If one’s phone is hacked, one can file a police complaint,” says a tech expert. Anivar Aravind, public interest technologist, says Pegasus takes control of mobile phones. “It can activate the camera and microphone, write information, and transfer information,” he adds.

On spy list

Phone numbers of former deputy chief minister G Parameshwara, secretaries of former chief minister H D Kumaraswamy, and former chief minister Siddaramaiah were possible targets for surveillance by the Pegasus spyware.