Pegasus: All eyes on court as government denies involvement

Jishnu E N

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Can a government in India spy through spyware like Pegasus according to the IT act? Advocates say no, IT act does not enable it.

Central agencies cannot be trusted as the government is an accused in this. Independent investigation is not possible. The next option is a judicial enquiry, Kaleeswaram Raj said. | Photos: AFP, PTI.

Kozhikode: As the union government goes on denying involvement in the alleged snooping using the Israeli spyware Pegasus, the attention is now on the judiciary. The fact that the govt is on denial mode rules out any investigation by the concerned authorities into the scandal. They are also not ready to debate the issue in the parliament.

Several political leaders including Shashi Tharoor, Chairman, Parliamentary Standing Committee on Information and Technology, and the Editors Guild of India have demanded the Supreme Court's intervention in the issue. Though many names including ministers, politicians, journalists and human rights activists are on the snoop list, no one has yet decided to approach court demanding an enquiry.

Sections 43 and 66 of the IT Act prohibits illegal monitoring and it can be challenged in court. Advocates that spoke to hope that the court will order an enquiry into the issue if approached. This is not just a breach of privacy but a threat to national security which has huge ramifications as a foreign agent is involved, said Supreme Court advocate Kaleeswaram Raj. If someone approaches the court, chances are high that the judges will order for investigation. But the real question is who will inquire about it. Central agencies cannot be trusted as the government is an accused in this. Independent investigation is not possible. The next option is a judicial enquiry, Raj said.

Software Freedom Law Centre legal director Prasanth Sugathan told that the Pegasus snooping is a complete violation of the existing laws. Government can intercept communication only through intermediaries. An executive order is a must for this. Pegasus cannot be considered as an intermediary, he said. The forensic analysis done by the investigators and the information available in the public domain are more than enough for the court to declare an investigation, Prasanth said.

Puttaswamy case

Public Interest technologist and digital rights activist Anivar Aravind told that snooping is a violation of fundamental rights. 'We should see this in a larger framework of Constitutional rights and other laws. Fundamental rights can be violated only in the case of a threat to national security. It is clear that this is not such a case,' he said.This is beyond the scope of hacking. It is political espionage, he said.

In 2017, a landmark judgement in Justice Puttaswamy (Rtd.) vs Union of India case said privacy is a fundamental right. This judgement will have a positive impact on this case, advocates and activists point out. This is illegal surveillance and attack on your private property. Apart from listening to the conversations, such spyware can even plant evidence on your phone and then get you arrested on this basis. There is no oversight by the parliament for the existing surveillance laws in India. There is no accountability on what the agencies do under the cover of surveillance . This should change, Anivar said.

On October 22, 2019, the Bombay High Court in Vinit Kumar vs Central Burau Of Investigation, made it clear that phones can be tapped only in case of 'public emergency or public safety.' However 'public emergency or public safety' is not well defined.

Existing laws in India

As many as 17 media houses across the world have reported that politicians, judges, journalists, human rights activists and many others were spied using the Israeli spyware Pegasus. This opens up questions about the practice of surveillance in India and privacy laws. India does not have laws that prohibit surveillance. In fact, some legalise government surveillance like the Indian Telegraph Act, 1885, Indian Post Office Act, 1898, the Information Technology (IT) Act, 2000 and a couple of codes and rules framed later.

The modern communication modes can be intercepted using the IT Act. Sections 69 and 69B allow the government to read everything one stores or transmits using 'any computer resource.' This can be done only if the Central Government or the State Government is 'satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence.'

In 2018, the union government permitted 10 central agencies to monitor 'any computer.' Can a government in India spy through spyware like Pegasus according to the IT act? Both Prasanth and Kaleeswaram Raj say no. IT act does not enable it, they say.

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