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The Pegasus Project – executed by a consortium of global news organisations, including The Wire in India – showed how governments have been using Pegasus spyware to target specific individuals. The project’s reporting identified multiple individuals in India, including members of the opposition and journalists, who had been targeted using Pegasus.
In October 2021, a number of individuals petitioned the Supreme Court of India, asking that it investigate whether Pegasus was illegally used to target them. The court set up a panel of technical experts to investigate if and how the spyware was used against citizens. The Supreme Court has now observed that the panel was unable to provide conclusive evidence that Pegasus was discovered on the devices it examined. The case, which involves requests for the report of the technical panel to be made public, will next be heard in four weeks.
One of the concerns raised is why the technical panel was unable to conclusively establish that Pegasus was used. How is it possible that the panel examined several devices of individuals who were identified as targets on the basis of forensic tests conducted by Amnesty International and peer-reviewed by Citizen Lab, and found no evidence?
Besides this, the panel received technical comments from established experts, including professors and researchers, so it would be difficult to argue that the comments put forth by these individuals and organisations were not good enough for the panel to accept.
In addition to the comments it received, the panel must certainly be aware of developments in investigations of the use of Pegasus in other jurisdictions.
In 2019, for instance, WhatsApp testified before a United States court that 1,400 individuals were targeted by Pegasus. The case in the United States assumes significance in this debate particularly because WhatsApp has confirmed that the figure in the case includes individuals from India.
In addition to this, technical evidence highlighted by the Pegasus Project was the basis on which authorities in several countries ordered independent investigations into the use of Pegasus. This includes investigations by the European Parliament as well as those in France, Spain, and Mexico. If the panel has indeed concluded that Pegasus was not used in India, it would be remarkable, since the same evidence presented to the technical panel has been deemed adequate to launch investigations into the use of Pegasus in other countries.
Another concern raised by the development is that the Supreme Court is unlikely to order an independent probe into the use of Pegasus if the technical panel concludes that Pegasus was not found on the devices it examined.
If this occurs, it will impact the rights of citizens who have been identified by independent experts and researchers, including by the University of Toronto’s Citizen Lab and Amnesty International’s Security Lab, as victims. These individuals have been and may still be targeted by spyware that infiltrates their personal lives, and the consequence of such illegal acts extends beyond their personal privacy and safety.
Because the list of potential victims includes members of the opposition, an election commissioner, a judge and staff of the Supreme Court, and journalists, the use of Pegasus to target these individuals strikes at the heart of Indian democracy.
It is important to remember that using Pegasus to target these individuals is illegal since Indian laws do not permit such hacking, with no exceptions even for the government. This makes it important for the Supreme Court to effectively investigate who ran Pegasus in India. Looking at the list of victims, it is easy to guess which government would have an interest in using Pegasus to spy on them. But without an independent investigation, we will never know for certain.
The Supreme Court continues to be the last recourse for those looking to hold those responsible for the use of Pegasus in India accountable since the government has resisted and evaded calls for an investigation into the matter and because the parliament was unable to meaningfully debate it.
As a first step towards functioning as an effective institution, the Supreme Court must avoid lurking behind the practise of using sealed covers over a key report of the technical panel. The report possibly outlines how the panel came to the decision that Pegasus was not found on the devices it analysed, and it must be made public with no redactions so that other experts may evaluate it. If the Supreme Court fails to function as an effective institution in this case, we will have three major pillars of our democracy failing to hold the government accountable when serious allegations of this nature arise.
Clearly, there is a lot more at stake in this case than the privacy of a handful of individuals. The Supreme Court’s ruling, in this case, will have effects that go beyond their rights, it will have an impact on the trust that citizens have in the independent institutions of our society. One can only hope that the Supreme Court understands this.
Jade Lyngdoh is at National Law University Jodhpur.