NEWS  There has been a rising number of questions over government hacking phones and installing spyware.

CONTEXT

• Report titled the “Pegasus Project” which is a collaboration of investigations by journalists from around the world, including from India’s The Wire,’ say that over 300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others”, were targeted using spyware made by the Israeli firm, NSO Group.

 CONCERNS

• Step of surveillance is seen as a threat to press freedom.
  • Amnesty International’s Security Lab confirmed that Pegasus was used to compromise the phones of former journalists like Sushant Singh (Indian Express), Paranjoy Guha Thakurta (former editor of the Economic and Political Weekly), S.N.M. Abdi (former Outlook journalist), and Siddharth Varadarajan and M.K. Venu (Wire’s two founding editors).
  • Similar allegations have been made in the past about the use of Pegasus against journalists and human rights activists, most of them were situated in Maharashtra and Chhattisgarh and targeted lawyers related to the Bhima Koregaon case and Dalit activists, respectively.
• This surveillance is particularly concerning because India ranks 142 out of 180 countries in the World Press Freedom Index, 2021 produced by Reporters Without Borders.

PROBLEMATIC LEGAL PROVISIONS IN INDIA

• Government already has surveillance power under Indian Telegraph Act of 1885 and the Information Technology (IT) Act, 2000 for interception and monitoring activities.
  • These provisions are themself problematic even without the use of Pegasus because of their opacity.
• Provisions of the Telegraph Act relate to telephone conversations whereas the IT Act is related to all communications undertaken using a computer resource.
• Section 69 of the IT Act and the Interception Rules of 2009 are even more opaque than the Telegraph Act. They offer even weaker protections to the surveilled.
• Despite their opacity, no provision under both the acts allows the government to hack the phones of any individual.  Hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act.
• Surveillance itself, whether under a provision of law or without it, is a gross violation of the fundamental rights of citizens as it impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution. 
• The issue with the laws is that there is no scope for an individual subjected to surveillance to approach a court of law prior to or during or subsequent to acts of surveillance since the system itself is covert.
• Absence of parliamentary or judicial oversight gives the executive the power to influence both the subject of surveillance and all classes of individuals including even Constitutional functionaries such as a sitting judge of the Supreme Court(Central government in RTI request in 2013 have revealed that 7,500 to 9,000 orders for interception of telephones were issued by it every month). This is equivalent to vesting disproportionate power with one wing of the government and is against separation of powers of the government.
• It is true that any surveillance is not too problematic when due process of law is followed. The existing provisions are problematic because they allow the executive to exercise a disproportionate amount of power and curtail Articles 32 and 226 and are also against  K.S. Puttaswamy (Retd) v. Union of India (2017) of the Constitution.

WAYFORWARD

• Only the judiciary amongst all the three organs is competent to decide on instances of surveillan. Hence it can play an important role in order to satisfy the ideal of “due process of law”, to maintain an effective separation of powers and to fulfill the requirements of procedural safeguards and natural justice.
• Judicial oversight and judicial investigation is essential particularly into the Pegasus hacking case because it even causes the phone number of a sitting Supreme Court judge, which further calls into question the independence of the judiciary in India.
• In the coming time as soon as spyware becomes more affordable and interception becomes more efficient, there is a danger that everyone will be potentially subject to state-sponsored mass surveillance. Hence, the only solution is immediate and far-reaching surveillance reform.

Reference:

1. https://www.thehindu.com/opinion/op-ed/surveillance-reform-is-the-need-of-the-hour/article35414371.ece