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New Delhi: The registry of any court is where a citizen’s quest for justice begins and the Supreme Court of India is no exception. As of August 2, 2021, the total number of pending matters is 69,476, and every month that figure rises by around 600. The court’s 26 judges deal with the law but it is the registry which helps determine when, where – and even if – new cases, especially ‘sensitive’ ones, move, or languish.
Sometime in the spring of 2019, the telephone numbers of two officers from the Supreme Court’s registry were entered onto a secret list that contained hundreds of numbers, including some which show clear evidence of being targeted with Pegasus spyware.
NSO Group, the Israeli company that makes Pegasus, says it sells its spyware to “vetted governments” only and that each sale requires an export license from the Israeli Ministry of Defence. NSO does not disclose the names of the countries it does business with. On its part, the government of India has never denied that it bought and uses Pegasus.
The database – now leaked – to which the numbers were added was never meant to become public. The executive and the judiciary are both independent arms of the state and the very idea that one branch could contemplate snooping on another – even at a seemingly innocuous level – raises troubling constitutional concerns.
N.K. Gandhi and T.I. Rajput both worked in the crucial ‘writ’ section of the Supreme Court’s registry when their numbers were added. More than 1,000 writ petitions are filed directly in the apex court in any given year, and these are of direct concern to the Union government. Some of them are considered politically sensitive.
When contacted by The Wire, Gandhi – who has since retired from the court – and Rajput wondered why any official agency would view them or their section as a possible candidate for surveillance.
In the absence of a forensic examination of the smartphones Gandhi and Rajput used at the time – neither of which is now available – it is impossible to establish if they remained mere persons of interest or were actually subjected to intrusive surveillance.
Earlier that year, two junior court employees, Tapan Kumar Chakraborty and Manav Sharma, were dismissed from service by then CJI Ranjan Gogoi “for tampering with an order” in a contempt of court case against Anil Ambani of the Reliance ADAG group, but there is no reason to believe the selection of Gandhi and Rajput – which came several weeks later – was linked to that case.
The charge against Chakraborty and Sharma was that they had deliberately dropped the word ‘not’ while uploading an order which was meant to say “Personal appearance of the alleged contemnor(s) is not dispensed with.”
While that order was processed by the writ section which handles dozens of orders every day from all 15 courts in the Supreme Court, Gandhi told The Wire, “the registry cannot possibly know whether what the court master has written down has been properly drafted or not. Our role is merely to execute the order.”
Chakraborty and Sharma were reinstated eventually by CJI Sharad Bobde in 2021 on ‘humanitarian grounds’, when the police failed to find evidence of any conspiracy.
A committee headed by Justice (Retd) A.K. Patnaik was tasked by the Supreme Court at the end of April, 2019 with probing the order-tampering case but was unable to reach any definite findings either. “My report was inconclusive”, Justice Patnaik told The Wire on Wednesday, “in part because I never got access to WhatsApp messages from the phones the police had seized [from Chakraborty and Sharma].” He also said that he had no information about any possible link between Gandhi or Rajput and the Ambani matter.
NSO denies the list of numbers has anything to do with its military-grade spyware. But forensic tests by Amnesty International’s tech lab – conducted as part of an international media consortium’s investigation into the leaked database accessed by French non-profit Forbidden Stories – has found evidence of Pegasus infection or targeting on more than 40 phones associated with the numbers listed on it, including 12 now from India. The Wire is part of the media consortium, known as the Pegasus Project.
On the list, Justice Arun Mishra’s old number
So far, the Pegasus Project has verified around 300 Indian numbers on the database. The presence on the list of a number associated with a sitting judge was mentioned on the day The Wire began running its stories. Having now spoken to him on the record, we can confirm that a Rajasthan mobile number formerly registered in the name of Justice Arun Mishra, who retired from the Supreme Court in September 2020, was added to the database in 2019.
A confidential source with access to BSNL records said that the number in question was registered in the name of Justice Mishra from September 18, 2010 to September 19, 2018.
Since the true utility of Pegasus is that it grants the official agency using it access to encrypted communication that ordinary interception does not enable, The Wire, as part of its verification process, asked the retired judge if he had continued to use WhatsApp or other messaging apps on his phone even after giving up the number. “The number +9194XXXXXXX is not with me since 2013-2014. I don’t use this number,” he replied.
Justice Mishra – who is now chairman of the National Human Rights Commission – subsequently noted that he had “surrendered the number on April 21, 2014”. Why this number was added to the database in 2019 by an India-based Pegasus operator is not clear.
Traces of Pegasus-associated activity in phone Christian Michel’s lawyer
Among the dozen or so lawyers across the country who appear on the database – some of whom are involved in human rights-related cases – are at least two who were representing high profile clients at the time their numbers appear in the list of surveillance probables.
Fugitive diamantaire Nirav Modi’s counsel, Vijay Agarwal, was added to the database in early 2018, after he signed on his controversial client, as was a number used by his wife. Neither of their phones were available for forensic examination.
Nirav Modi is wanted for bank fraud and his flight from India in January 2018 was a source of political embarrassment for the Modi government when he appeared in a group photograph with the prime minister at Davos a month later. Since then, securing his return from London, where he fled to, has been an official priority.
Another Delhi-based lawyer, Aljo P. Joseph, added to the list in 2019, represents Christian Michel, the British ‘middleman’ extradited to India in December 2018 in connection with the Agusta Westland helicopter deal case.
Michel’s case is also of great political significance for the Modi government because it had hoped to use his testimony to implicate senior Congress leaders and even the Gandhi family itself in the Agusta scam.
The forensic examination of Joseph’s iPhone data is currently underway but Amnesty’s tech team says that preliminary indications show a Pegasus-related iMessage lookup as part of the process of targeting.
“This government is known for peeping/snooping into the privacy of citizens,” Joseph told The Wire when the preliminary forensic indications were shared with him. “The use of such technology shows that democratic principles are being compromised and that India’s democracy is not safe in their hands”.
A close aide to Mukul Rohatgi, target or proxy?
One of the numbers on the leaked database belongs to M. Thangathurai, a junior lawyer working in the chambers of former attorney general Mukul Rohatgi.
Thangathurai and Rohatgi both expressed surprise when informed by The Wire about the number’s inclusion.
Thangathurai, who has worked with Rohatgi for several years, said that his telephone number is listed under his boss’s name in many places such as the bank and elsewhere so that the senior advocate is not disturbed by “routine” calls, OTPs etc when he is in court or otherwise busy. Rohatgi confirmed that this is indeed the practice.
The number was added in 2019, two years after Rohatgi demitted office as AG. During this period, Rohatgi continued to represent the ‘establishment’ in certain key cases but had also begun taking a position independent of the government on some issues.
When the Pegasus Project media consortium wrote to the Prime Minister’s Office prior to publishing its first stories last month, the ministry of electronics and information technology responded by denying it had illegally spied on anyone. “The allegations regarding government surveillance on specific people has no concrete basis or truth associated with it whatsoever,” the ministry said.
While Indian law allows for lawful interception under prescribed procedures, legal experts say the use of Pegasus, which involves hacking into a targeted individual’s smartphone, constitutes hacking, amounts to a crime under the Information Technology Act.
Targeting of officers who went to court
Apart from the targeting of lawyers, two officials who went to court to challenge what they said was their wrong dismissals, were also marked for probable surveillance.
Several numbers used by former CBI chief Alok Verma and his family were added to the list of numbers soon after his peremptory sacking on the night of October 23, 2018. The period he was under probable surveillance coincided with the time his matter was being heard in the Supreme Court.
Likewise, Jitendra Kumar Ojha, who was compulsorily retired from the Research and Analysis Wing in 2017, got added to the Pegasus Project database in early 2018, just when he moved the Central Administrative Tribunal.
With additional reporting by Ajoy Ashirwad Mahaprashasta