Pegasus Spyware Scandal: Civil Liberties Groups & Activists Urge CJI For Court Monitored Probe

Source: The Guardian

Over five hundred individuals and groups have endorsed an open letter to the
Hon’ble Chief Justice of India Shri N.V. Ramana urging the immediate intervention of
the Supreme Court of India on matters pertaining to the Indian end of the
international Pegasus spyware scandal. The letter requests the Hon’ble Supreme
Court to demand of the Government of India and the NSO time-bound answers to the
several pressing questions regarding the state-sponsored cyber-warfare that has been
waged against Indian citizens, given the revelations of the Pegasus Project, an
international collaborative investigation being conducted by several international
media and research organisations. The letter appeals to the hon’ble Supreme Court to
declare a moratorium on the export, sale, transfer and use of Pegasus in India.

The signatories are shocked by media reports that Pegasus spyware a military grade
malware sold by the Israeli firm NSO only to whetted governments, was used to also
target and surveil women students, academics, journalists, human rights defenders,
lawyers, and victims of sexual violence. They are aggrieved by the findings of the
Pegasus Project that the Supreme Court woman employee and members of her family
were made a target of Pegasus surveillance after she had filed an affidavit
complaining of sexual harassment and victimisation against the then CJI Ranjan Gogoi
(now a member of the Rajya Sabha from the ruling party) in April 2019. The
signatories request the Supreme Court to adopt a gender-just sexual harassment
policy in the Supreme Court and a data protection and privacy policy that ensures
that protection from such cyber warfare as a basic feature of the independence of the
judiciary.

Signatories to this important and wide-ranging letter note that concerns for gender
equality and human rights are inextricably linked to the assurance of the right to
privacy and a protection from surveillance. The signatories to this letter are drawn
from all four corners of the country and across professions. Alongside well-known
individuals who have stood steadfast for democratic reforms (Aruna Roy, Anjali
Bhardwaj) and human rights (Kavita Srivastava, Teesta Setalvad, Harsh Mander),
scholars and practitioners of the law and lawyers (Vrinda Grover, Kalpana
Kannabiran, Jhuma Sen, Aparna Chandra, Pratiksha Baxi) eminent academics and
scientists (Zoya Hasan, Niraja Gopal Jayal, Utsa Patnaik, Jayati Ghosh, Rosemary
Dzivuchu, Romila Thapar, Sukanta Chaudhuri, Ram Ramaswamy), acclaimed writers

(Arundhati Roy, V. Geetha, Githa Hariharan, Amit Chaudhuri), musicians and artists
(TM Krishna), architects and artists (Pushpamala N., Prem Chandavarkar, Vivian
Sundaram), persons in political life (Kavita Krishnan, Manoj Jha, MP), journalists
(Anuradha Bhasin, Patricia Mukhim, John Dayal), the list of signatories includes
hundreds of students and research scholars, researchers and academics, retired
government officials, retired members of the armed forces, private entrepreneurs, RTI,
human and women’s rights activists, health professionals and members of social
organisations.

Reposing their trust in the Supreme Court following an address, the CJI had assured
all citizens that it was aware that citizens know that “when things go wrong, the
judiciary will stand by them”. This letter is therefore both an assessment that things
have gone very wrong indeed as well as an appeal to the judiciary for meaningful
reassurances from the Supreme Court that the promises to citizens of the rule of law,
justice, equal rights, and freedoms enshrined in the Constitution still guides Indian
democracy.

[Read Letter]

To
The Hon’ble Chief Justice of India,
Supreme Court of India

Respected Hon’ble Chief Justice of India,

The Pegasus spyware investigation has unveiled how its military grade malware installed on the phones of those targeted converts the device for use by a consumer to an object that spies on the individual, steals data and transmits data to unknown persons/databases. This has been defined as cyber warfare by experts in the field and it is nothing less than an act of state sponsored cyber terrorism against individuals. In this context, the Pegasus project and information in public domain raises concerns for the integrity of constitutional authorities including the independence of the Supreme Court. The investigation starkly discloses that the rights and freedoms of peoples, of which the Supreme Court is the guardian, are under grave risk.

We are deeply disturbed by reports that journalists, lawyers, clients, activists, academics, students, and even complainants of sexual harassment, witnesses and their support persons were made persons of interest and targets of the Pegasus malware. Human rights activists have repeatedly asserted that such hacking as well as other kinds of abuse of office has resulted in malicious prosecution, wrongful imprisonment, custodial torture, and custodial death of political prisoners.

For women, the Pegasus scandal is deeply concerning, for speaking out against the state and men in positions of state power has meant that their lives are wrecked by such surveillance permanently. Human rights defenders have been imprisoned, and victims of sexual harassment have also not been spared such shocking forms of state sponsored cyber-crimes, which are analogous to digital forms of state terror. We are extremely disturbed by indications that targets for such hacking included the Supreme Court woman staffer who in April 2019 raised a complaint of sexual harassment and victimisation against former CJI Ranjan Gogoi, as well as 10 mobile numbers linked to her family members. The woman complainant and her family members were added to the list of targets days after she placed an affidavit detailing her complaint of sexual harassment and victimisation, before the then sitting Judges of the Supreme Court.

It is common knowledge that Pegasus software is sold by the Israeli firm NSO only to
governments, ostensibly for “national security” and “counter-terrorism” purposes. It is used to hack into smartphones remotely, and then gain control over those smartphones, without the knowledge of the target. The Indian list of targets indicates that the software was used, not to counter terrorism, but to gather information on, and perhaps thereby seek to control, Opposition politicians, the judiciary, the Press, as well as activists and others in civil society.

Women all over the country demand to know: was a sexual harassment complainant, along with members of her family, subjected to such invasive hacking—and if so, to what purpose and by whom? How can any woman in India ever be expected to pursue a complaint against a hierarchical superior in the face of the chilling possibility that this may expose her and her loved ones to such a sinister criminal invasion of privacy? The Supreme Court’s response to the woman’s complaint in 2019 had been to set up an In-House Committee of three sitting Judges of the Supreme Court.

The complainant withdrew from the said In-House Committee proceedings, stating that the Committee refused to inform her about the procedure being followed; she was not allowed to have her lawyer present; the proceedings were not recorded; and copy of her testimony was not simultaneously given to her. She also stated that she and her family members were being intimidated and followed. The In-House Committee ex-parte concluded by awarding CJI Ranjan Gogoi, a clean chit. After retiring as Chief Justice of India, Mr. Gogoi is now a Rajya Sabha M.P. from the ruling party.

The recent revelations in the Pegasus project now suggest that far from being a perpetrator of such a plot, the complainant along with her family members was the victim of an elaborate program of illegal hacking and spying. If the complainant was under such criminal duress at the time, can the proceedings of the In-House Committee really have been free and fair? The silence of the Supreme Court as an institution on these revelations is deeply troubling for women in India.

There are many questions that the Government of India, the Home Ministry, Mr. Ranjan Gogoi, and the NSO must answer, but as citizens we do not have the power to command such answers from these powerful entities. The Supreme Court has the power and duty to ask these questions, and it must speak for us— just as you recently assured us while speaking at an event in mid-July, “People are confident that they will get relief and justice from the judiciary.

They know that when things go wrong, the judiciary will stand by them. The Indian Supreme Court is the guardian of the largest democracy.”

We hope that your office will lose no time in taking notice of this matter, and seeking timebound answers to protect our rights and freedoms, its own credibility as an institution and in defence of our Constitution.

The Indian public, and the women of India in particular, troubled by the questions as to whether any Indian entity purchased Pegasus, who that entity was, how it was paid for
(given that the costs are reportedly estimated to amount Rs 1.5 crore per phone)?

If it was indeed purchased, how were the targets for hacking chosen and what use was made of the information so gained? What were the admissible justifications for such targeting, and before which Constitutional authority were they presented? Which Constitutional authority oversaw or reviewed the criminal violation of privacy of so many individuals, including journalists, politicians, lawyers, human rights activists, and academics (and the SC staffer and her family members) so that they came to be on the list of Pegasus targets? We believe that the Supreme Court can only instil confidence in people’s, and particularly women’s minds by transparently demanding and making public all answers relating to the use of Pegasus in India.

Above all, we look to the Supreme Court to declare a moratorium on the export, sale, transfer and use of Pegasus in India.

We seek your assurance that the institution of the Supreme Court of India is committed to upholding conditions free of intimidation as a prerequisite for fair inquiry in all matters, including inquiry into complaints of sexual harassment in the workplace (for which, regrettably, the Supreme Court of India has yet to institute an inquiry and redressal mechanism that judiciously combines the principles underlying its Vishaka judgment and the concerns of independence of the judiciary). The Supreme Court must fulfil its institutional obligations to provide women a safe workplace, and to that end, ensure full protection to complainants, their families and lawyers from cyber warfare.

We raise the concerns we do in this letter in order to safeguard the independence of the
judiciary, and its commitment to gender equality and freedoms.

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