NEW DELHI—The Narenda Modi government’s multiple statements in response to the revelation that Pegasus—a sophisticated snooping software developed by the Israel’s NSO group—was used to spy on human rights activists and journalists, have been criticised by lawyers who who were part of the historic legal battle to get the right to privacy recognised as a constitutionally protected right of Indian citizens.
HuffPost India reached out to three young lawyers who helped make the case in favour of recognition of the right to privacy as a constitutionally protected right in the Supreme Court in 2017 to know what they have to say about the snooping revelations as well as the Modi government’s response to it.
All of them expressed dissatisfaction with the Modi government’s two official statements issued thus far, spoke about their concerns relating to the incident and sought concrete action from the government to address the problem of unlawful snooping.
Apar Gupta, lawyer and Executive Director of the Internet Freedom Foundation, said union minister Ravi Shankar Prasad’s statement left much to be desired. “The statement which has been put out by the Honourable Minister for Electronics and IT is not satisfactory for the reason that the surveillance powers under the Telegraph and Information Technology acts are in favour of the Home Ministry and the agencies authorised by it,” he said.
Responding to the Congress party’s criticism that the Modi government ordered surveillance against dissenters, Prasad had said in a written statement on Thursday that, “The Government is committed to protecting the privacy of all Indian citizens. Government agencies have a well established protocol for interception, which includes sanction and supervision from highly ranked officials in central & state governments, for clear stated reasons in national interest.”
This was the first public response from any significant functionary in the Modi government. It was followed by a statement from the Ministry of Home Affairs the same day after concerns were raised about why it was silent given that some key Indian internal spying agencies report to this ministry.
“Some statements have appeared based on reports in media, regarding breach of privacy of Indian citizens on WhatsApp. These attempts to malign the Government of India for the reported breach, are completely misleading,” the Amit Shah-led ministry said. Further, it claimed the government is committed to protecting the right to privacy of citizens.
‘Not A Denial’
Gupta found it more appropriate to take a closer look at the Home Ministry’s statement. “The statement made by the Ministry of Home Affairs with regard to the malware is not a specific denial,” he noted.“It further does not indicate what steps are being taken specifically by the Ministry of Home Affairs to protect the privacy of Indian citizens. For instance, if any request is being made, or any demand has been made to the NSO Group to reveal who was the contractor who did surveillance on Indian citizens.”
The Supreme Court lawyer felt what’s “very striking” as well as “very disturbing” about the way activists, journalists and lawyers were spied upon is that, “it is no ordinary surveillance technology which has been procured but a software to hack into devices, which is not an existing legal power” that the agencies possess under current Indian law.
The consequence of the MHA’s not specific denial, in Gupta’s view, is “a breakdown of trust between people and the government with regard to how surveillance is being used in India, which is a power that is limited and should be used sparingly used in cases of preventing any kind of threats to our national security.”
Prasanna S, another lawyer who was also part of the right to privacy case in the Supreme Court, shared what he considers to be the message between the lines from both responses of the Modi government. “That the government purchased pegasus or any software from NSO, there is no denial to that effect. It effectively means there has been a purchase. Now the question is not whether there has been a purchase. That is now answered by the silence of the government. Now the only question that remains is: who purchased and when? Under what law? What was the protocol that was followed in purchasing this? Under what law was it even operationalised and all of these questions. Only these questions remain,” he said.
He further added, “Question of whether they purchased it all, to my mind, is a foregone conclusion because of the silence that has been there for more than a day now. I am surmising that the answer is this.”
“Judicial supervision and oversight is one of the minimum standards which needs to be incorporated given that the pre-existing safeguards were made in 1996 when only landline phones were in use, and are not in step with personal data which is gathered today as India becomes a digital democratic society. Given this, there is a need for urgent legislative intervention and surveillance reform in India”
‘WhatsApp Snooping A Violation of Right To Privacy Judgement’
Advocate Kritika Bharadwaj, who was also part of the right to privacy case, emphasised the relevance of the 2017 privacy judgement. “In 2017, the Supreme Court not only affirmed the fundamental right to privacy but also set rigorous standards to justify interference with it. Any entity conducting this kind of surveillance must show that its actions are backed by law, necessary to achieve a legitimate aim, and are a proportionate interference with a citizen’s fundamental rights,” she noted.
In this context, Bharadwaj said, the recently discovered instance of snooping was not only illegal but also unconstitutional. “In this case, there appears to be absolutely no legal basis to justify such surveillance. In fact, from the information available publicly, it appears to be entirely unconstitutional,” she said.
According to Gupta, the responses from union Home and IT ministries leave no option but the need for judicial intervention to reassure citizens that their privacy will be protected. “It is only fit and proper that an independent judicial inquiry may be explored. Have all the victims of this malware infection come forward and depose before a committee in addition to it having powers to summon people from WhatsApp as well as the NSO group,” the lawyer said.
He also emphasised the need for ensuring “judicial supervision” of surveillance carried out by security agencies in India to address concerns raised by the WhatsApp snooping incident and to implement the right to privacy judgement in its true spirit.
Gupta pointed to issues raised in a Writ Petition filed in the Supreme Court by his organisation in February this year after the Modi government permitted 10 intelligence agencies to snoop on citizens’ computers to explain precisely what he meant by ensuring “judicial supervision” of surveillance activities.
The petition, he said, calls for “safeguards which are now necessary after the 2017 right to privacy judgement which has been interpreted in the second Puttaswamy judgement relating to the constitutionality of Aadhar to require judicial oversight preferably by a High Court judge of any surveillance requests which are made by any intelligence agency with regard to biometric data which is gathered under Aadhar.”
“It is our belief as petitioners before the Supreme Court that judicial supervision and oversight is one of the minimum standards which needs to be incorporated given that the pre-existing safeguards were made in 1996 when only landline phones were in use, and are not in step with personal data which is gathered today as India becomes a digital democratic society. Given this, there is a need for urgent legislative intervention and surveillance reform in India,” he concluded.