Law can be stretched to stonewall questions on Pegasus

Parliament has not enacted any law to permit the government to buy military spyware like Pegasus. The only law which can be used to stonewall questions is the Official Secrets Act

Olav AlbuquerqueUpdated: Friday, July 22, 2022, 12:19 AM IST
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The law of contempt, like the criminal law, can be stretched to save those who chastise judges for flaying Nupur Sharma in their court rooms while ignoring the unjustified comments in the judgment which resulted in the arrest of activists like Teesta Setalvad.

Predictably, this is why the attorney general of India KK Venugopal refused to sanction the prosecution of those dignitaries for criticising Justice Surya Kant for his so-called intemperate remarks against Nupur Sharma, which is a gross violation of the fundamental rights in Part III of the Constitution.

Like it or not, the government does have the final say in the appointment of judges. This is why the government thumbs its nose at the judiciary in the Pegasus scandal although CJI NV Ramana wanted to know if the government did buy Pegasus, and if so under which law. Israel’s NSO group which developed this super-advanced spyware has been sued by Apple and blacklisted by the US simply because human rights and the use of Pegasus are mutually antagonistic.

Despite the appointment of a technical committee headed by retired Supreme Court judge RV Raveendran to probe the Pegasus scandal, the government refuses to confirm or deny using Pegasus on its own citizens by using the specious ploy of “national security.” We must accept that using Pegasus against any citizen, be it a journalist or an advocate, is a gross violation of the right to privacy.

To return to the technical committee, there were two issues which it was supposed to have resolved. The first was whether the central government had acquired the military spyware Pegasus, and if so, under what law it had done so. And what procedures had been followed when it was used to eavesdrop on the phone conversations of some opposition leaders, journalists and advocates. The government had two choices, accept that it has bought this spyware from Israel’s NSO group or commit perjury by denying it has done so. Very cleverly it has done neither, instead creating a third choice for itself and the judiciary – national security.

The technical committee has not divulged whether the present or former heads of the IB or RAW or the Home Minister or the National Security Advisor have been called to depose before it. If they have not been summoned, the committee, with the greatest respect, will not come to a definite conclusion. For these are the people who know whether the government bought Pegasus, when it did so from Israel, and under what law it was authorised to do so.

Pegasus-gate is the greatest scandal to rock the Narendra Modi government although the entire media seems to have forgotten about it. This appears to confirm that India has turned into a Hindu majority state where the use of Chanakya-like Machiavellian tactics to spy on India’s own citizens will be justified by NSA Ajit Doval who, with the home minister, has the answers to what the committee is seeking to probe.

It was Doval who declared that “Wars are too expensive and unaffordable with uncertain outcomes but it is civil society which can be subverted, suborned and manipulated to hurt the nation’s interests.” This is why India engages in endless talks with China as it gobbles our territory while those who criticise the government and its policies find themselves in jail.

Doval has declared who is the real enemy – civil society and the subversives who protest against the government and its policies. These “saboteurs” will have their devices hacked by Pegasus, and Article 21 which includes the right to privacy and also the right to life can go bury itself under academic debates.

From a legal perspective, the Intelligence Bureau reports to the Union home minister, and the Research & Analysis Wing to the cabinet secretary and prime minister. But in reality, the National Security Advisor is the force behind IB and RAW. In March 2017, Ajit Doval visited Tel Aviv to engage in the nitty-gritty for Prime Minister Narendra Modi’s visit to Israel. This appears to be when the basic agreement for the purchase of the military spyware Pegasus was reached.

A leaked database of telephone numbers began to record activity shortly after the Modi-Doval visit to Israel in 2017 just as technical experts outside India reported that one Indian customer, active since 2017, spies within India and abroad. A second customer, active since at least 2020, spies solely inside India.

Since the NSO group sells its spyware only to governments, it does not take a great deal of intelligence to infer that the “Indian customer which spies within India and abroad” is RAW whereas the one which “spies only within India” can be either the IB or the Enforcement Directorate which has gone into overdrive of late. The CBI is a third guess.

Parliament has not enacted any law to permit the government to buy a very advanced military spyware like Pegasus which can be sold only to governments and not corporate bodies. The only law which can be used by the government to stonewall the questions asked by the Justice Raveendran committee is the Official Secrets Act, 1927. The specious excuse of “national security” will again be used but this constitutes technical contempt of court. But like the attorney general KK Venugopal who refused to permit those so-called dignitaries to be prosecuted for contempt of court, it is unlikely that he will grant permission to prosecute the government which has made him its representative.

The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay High Court

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