Pegasus misuse: Over to the Supreme Court


The world has not fully comprehended the emancipation of the individual in our fast-changing technology environment. At the same time, the world has not fully comprehended the dangers that beset this emancipation. Technology empowers us in many ways. Children who have access to contemporary technology and innovations are enabled to discover the world sitting at their homes; to understand and access solutions that may not be available in the classroom, and above all, reach out to those dear to them around the world. Teachers empower themselves by upgrading their knowledge in ways unheard of before. Scientists exchange views on matters that concern humankind. Knowledge sharing has become much easier and platforms are built to communicate new ideas and skills in a jiffy. Goods and services are delivered at the doorstep from within and across borders. Future wars will be fought in cyberspace. The mind cannot today fathom the multifarious uses of technology for the common good. This level of emancipation has never been witnessed in the history of mankind before.

However, technology also brings with it dangers that may emasculate our cherished freedoms and institutional integrity, especially when misused by an omnipresent, all-powerful state or even rogue players. It can pry into our everyday lives, see what we do, hear what we say, watch wherever we go. The state can take hold of our lives in multiple ways not known before. It can access activities of those saddled in the layers of power, who are institutionally obliged to watch the state and keep it on track within the framework of our Constitution. It can compromise constitutional authorities and pollute the free flow of ideas when falsehood is allowed to be masqueraded as truth. Technology allows the state to discreetly survey and track from afar. It can take over the emancipation of the individual by enslaving him within its fold.

Pegasus has demonstrated that technology can also infiltrate, not across borders but into our minds. Those using it are the new ghuspaithiyas. Journalists, academics, lawyers, political opponents, bureaucrats and those in the judiciary—none is spared. An upright bureaucrat can be made pliant. Institutions can be compromised. Lives can be wrecked silently. The fact that Pegasus was used between 2017 and 2019 suggests that the electoral process too might have been polluted and a level playing field, the fundamental premise of an electoral battle, might have been skewed. There is also a possibility that some state governments, through Pegasus, may well have been toppled with the flow of information that such technology allows. No individual or institution is safe if the state chooses to target them.

So where do we go from here? Technology is here to stay. The architecture of the future will be designed by multifarious technological frameworks and solutions. Even if we wish, we cannot get rid of it. We will be living in a more open society where individuals, willy-nilly, will be sharing their choices with technological platforms for ease of living, apart from ease of doing business. We need to develop a robust set of rules that technology applications must adhere to. The judiciary must stand up and take note of these developments. The Supreme Court, in particular, must seize this opportunity to assess the extent to which Pegasus has infiltrated into the lives of individuals who were targeted. The court must ensure accountability of those who use these means for partisan ends.

This is an issue that touches upon the lives of every citizen. The fundamental question to be decided is whether it is legitimate to use technology to access the lives of people. The website of Pegasus suggests that this technology is to be used only to thwart potential acts of terror and serious crimes. This technology is licensed with the approval of the Ministry of Defence of Israel. The terms and conditions of the licence require it to be used only for limited purposes. There is no oversight either within the country or outside to ensure that this technology is not misused in the manner in which individuals, far removed from terror or serious crimes, are targeted, as is evident from the list of names now disclosed. There is no mechanism in place to prevent state actors from misusing this technology. Therefore, fundamentally, should such technologies be allowed to be used at all? Today, we have Pegasus. Tomorrow, we may have other similar technologies created or devised by domestic players who might wish to use it with similar intent as demonstrated by the use of Pegasus.

While none can object to its use to deal with terror, one wonders what the understanding of this government is about ‘serious crimes’ in the context of use of such technologies. Is a journalist who writes against the establishment guilty of serious crimes? Has Dainik Bhaskar, which publishes news items demonstrating the intransigence of the state in matters of liberty, committed a serious crime? Are bureaucrats snooped upon threats to the security of the state? Are officials working in the Supreme Court a threat to the integrity of the institution? These are questions that need clear answers from the government. We need to devise mechanisms, both at the domestic and global levels, to sanctify rules of procedure to protect the freedom and privacy of individuals.

It is not the time to sit back. The court needs to act and act swiftly. Democracy is threatened. Individual freedoms are at risk and so are the constitutional values on the foundation of which our Republic is built. It is the court’s duty to protect those values. None other, this government in particular, has demonstrated any desire to do so. Over to you, Supreme Court.

Kapil Sibal, Senior lawyer, Congress leader and member of Rajya Sabha, (Tweets @KapilSibal)


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