Pegasus: In Parliament, Modi govt says illegal surveillance not possible in India; in SC it refuses to respond

The government seems to be caught in a web of its own lies in the Pegasus surveillance issue with it coming to light that the Minister for Electronics and Information Technology Ashwini Vaishnaw had willfully misled Parliament on the subject. With the first leg of the Budget session beginning on January 31, the Congress on Sunday gave a notice in Lok Sabha for moving a privilege motion against Vaishnaw for “misleading” the House.

Just before the monsoon session in 2021, a report had revealed that government allegedly used Israeli spyware Pegasus to snoop on political leaders, journalists, judges and civil society activists. In response to these allegations, Vaishnaw, had on July 19, 2021, informed both the Houses that the story was “sensational” and an attempt “to malign Indian democracy and its well established institutions”. Vaishnaw’s name was on the list of those whose phones were allegedly snooped into by the Modi government.

Vaishnaw had said, “I rise to make a statement on reported use of spyware Pegasus to compromise phone data of some persons. A highly sensational story was published by a web portal yesterday night. Many over the top allegations have been made around this story. The press reports have appeared a day before the Monsoon session of Parliament. This cannot be a coincidence.” The reports are part of a global collaborative investigative project, anchored in India by The Wire, a digital news platform.

A global consortium of media groups had revealed in July 2021 that the spyware had been used by several governments around the world to snoop on opponents, journalists, businessmen etc. The Indian leg of the investigation, conducted by The Wire, had reported that among the potential list of targets were Congress leader Rahul Gandhi, political strategist Prashant Kishor, then Election Commissioner Ashok Lavasa, now Information and Technology Minister Ashwini Vaishnaw (who was not a minister then), along with several other prominent names. The list also mentioned numbers of around 40 journalists.

Vaishnaw said that in the past too, similar claims were made regarding the use of Pegasus. “Those reports had no factual basis and were categorically denied by all parties including in the Supreme Court. Press reports of July 18, 2021 also seem to be an attempt to malign the Indian democracy and its well established institutions,” he said.

“The basis of this report is that there is a consortium which has got access to a leaked data base of fifty thousand phone numbers. The allegation is that individuals linked to these phone numbers were being spied upon. However the report says that the presence of phone numbers in the data does not reveal whether a device was infected by Pegasus or subject to an attempted hack. Without subjecting the phone to this technical analysis, it is not possible to conclusively state whether it is an attempted hack or was successfully compromised. The report itself clarifies that the presence of a number in the list does not amount to snooping,” he said.

Vaishnaw quoted from the NSO’s defence on the issue, “I highlight, sir, that NSO has also said that the list of countries shown using Pegasus is incorrect. Many countries mentioned are not even our clients. It also said that most of its clients are western countries. It is evident that NSO has also clearly rubbished the claims in the report,” he said.

“India’s established protocols when it comes to surveillance. I am sure my friends in opposition who have been in government for years are very well aware of these protocols. Since they have governed the country they would also be aware that any form of illegal surveillance is not possible with the checks and balances with our laws and robust institutions. In India there is a well established procedure through which lawful interception of electronic communication is carried out for the purpose of national security particularly on the occurrence of any public emergency or in the interest of public safety by agencies at the centre and the state. The requests for these lawful interceptions for electronic communications are made as per the relevant rules as per section 5(2) of the Indian Telegraph Act, 1885 and section 69 of the IT Act, 2000. Each case of interception is approved by the competent authority. These powers are also available to the competent authorities to the state governments,” he said. Vaishnaw claimed that India had established protocols when it comes to surveillance which were robust and had “stood the test of time”.

“There is a very well established oversight mechanism in the form of a review committee headed by the Union Cabinet secretary. In case of a state government, this committee is headed by the Chief Secretary concerned. The law also provides an adjudication process for those people who are adversely affected by any such incident. The procedure therefore ensures that any interception, or monitoring is done as per due process of law,” underscored Vaishnaw.

The IT minister had concluded that the publisher of the report had stated that it could not say if the numbers in the published list were under surveillance and additionally the company whose technology was allegedly used had denied these claims out rightly. “And the time tested processes in our country are well-established to ensure that unauthorised surveillance does not occur,” claimed Vaishnaw.

What did the government inform SC on Pegasus?

The Supreme Court had noted on September 13, 2021, that the government had refused to respond, through a “detailed” affidavit to allegations that it used Israel-based Pegasus software to spy on citizens. A Bench of Chief Justice of India (CJI) NV Ramana, Justices Surya Kant and Hima Kohli had stated that there cannot be any “beating around the bush” in the issue.

The government said such an affidavit in the apex court would be too public and compromise national security. Even after reserving orders, the SC had informed solicitor General Tushar Mehta that he could mention the case if there were any second thoughts in the next few days before the pronouncement of the order.

Instead, Mehta argued that a public discourse on whether a particular software was used or not would alert terrorists. He wanted the court to allow the government to form a committee of “domain experts” who would look into the allegations of snooping orchestrated against citizens, including journalists, activists, ministers, parliamentarians, among others. He assured the court that the committee members would have “no relationship” with the government and would place their report before the Supreme Court.

The CJI had also questioned the practicality behind the government’s insistence on refusing to discuss the Pegasus allegations in open court, saying that even if an expert committee was formed, its work and the report would eventually become public.

Then more than a month later, on October 27, 2021, the Supreme Court appointed an independent expert technical committee overseen by a former apex court judge, Justice RV Raveendran, to examine allegations that the government used an Israeli spyware, Pegasus, to snoop on its own citizens.

Appointing the committee, CJI remarked, “There was no specific denial of the allegations by the Union of India. Had the Union of India made its stand clear, there would have been lesser burden on the court.”

The three members of the technical committee would be Dr Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat; Dr Prabaharan P, Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala; and Dr Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra.

The committee was formed in response to a petition filed by senior journalists N Ram and Sashi Kumar, who had moved the Supreme Court for an independent probe headed by a former or sitting top court judge into the mass surveillance of over 142 potential “targets”.