The Pegasus controversy as well as recent searches on Dainik Bhasker Group has brought to the fore the various dimensions and aspects of controversy, in various debates. It is to be understood that usage of Pegasus as a surveillance software has revealed various facets of the problems that the new technologies, if used are going to pose on the legal side. The focus is also on legal issues to be resolved specially when “Right to Privacy” has been recognized by the Hon’ble Supreme Court of India as the basic and fundamental right in K. S. Puttuswamy Vs. Union of India popularly known as ‘right to privacy judgment’ as reported in 2017(10) SCC 1. Prior to this reasonable restrictions were placed on right to privacy for law governing surveillance in India as contained in Indian Telegraph Act, 1885 and in the Information Technology Act, 2000. After the decision prescribing guidelines in the matter of People’s Union for Civil Liberties (PUCL) Vs. Union of India as reported in 1997 (1) SCC 301, the same were incorporated in statutory provisions. These mainly pertained to the directive that the Order of interception should be in the interest of public safety or in cases of public emergencies and the same was required to be reviewed for the agencies like- Intelligence Bureau, Directorate of Investigation, Narcotics Control Bureau, Enforcement Directorate, Directorate of Revenue Intelligence (DRI), Central Bureau of Investigation (CBI), NIA, Research and Analysis Wing (RAW) etc. by a committee to be headed by the Cabinet Secretary, Secretary Legal Affairs, and Secretary Department of Telecommunication as later incorporated in Rule 491A of the Indian Telegraph Act, 1885. Such review has to be made with in 7days of the order of interception being issued. Similarly Section 69 of the Information Technology, 2000 allows monitoring, interception and decryption of any information transmitted, received, saved or stored in a computer resource. The present smart phones can fall in and get included in this category. Unlike in U. S. A. and various jurisdiction where such interceptions are considered as a search warrant and is subjected to `reason to believe’ as well as recording of such reasons, no such requirement exists under Indian Law and the authorized officer of approving agencies can of their own start interception and do it for seven days by recording emergency need.
The new dimension that has been added by the Pegasus Software Controversy relates to the fact that it can even capture Camera and Micro phone of the subjected target and can switch it on even without knowledge of the target and at any time by the person causing surveillance. Such technologies were being developed at the time when Osama Bin Laden was in hide out and whole law abiding world was looking for him. This can inadvertently subject even others to target and can infringe their right to privacy. A smartphone kept on surveillance of the target in a bedroom or a change room can subject even the right of privacy of all the women in the household, who may not be the intended target and can achieve no purpose. While India can have no control worldwide over such software being developed and deployed by an agency outside India, there is definitely a case to regulate or even disallow use of Pegasus or any such software, which intrudes in privacy of its citizens.
A petition has already been moved in the Supreme Court of India for probe in the controversy. Nonetheless, it will be appropriate to consider regulation of such use, so as to disallow usage of camera and microphone except when the target is not a citizen of India or is functionary of any inimical country. The development of more intrusive technologies is on the rise worldwide, deliberations in international convention should also start to regulate use by consent of the Member States, who can themselves adopt municipal legislations under their own laws to regulate under such international conventions. With the advent of technologies, there is a need to revise procedure as the same were framed, when such merging technologies as smart phones with phone, camera, screen, data storage and banking and other apps were not in existence. The restrictions placed on the officials have to be much more stricter than are at present, as capturing Smart Phone of a target can gives access to all his banking and other codes including biometrics. In any case the financial frauds are becoming common place even in the hands of public players and IT policing is unable to catch all of them. The selection and employment of only persons with utmost integrity has to be ensured and multiple agencies with offices all over India should not be vested with unbridled powers. The Pegasus Software controversy has shown that its subjected usage in India, (if public reports are found correct) has not been on a very reasonable basis, as persons of integrity who were selected to be Ministers in the Government of India after doing their stint in high government positions have also been stated to be targeted by such surveillance.
Searches on the other hand by premier investigating agencies are normally done on reasonable and well founded belief which is now increasingly being subjected to judicial scrutiny also. As more and more fiscal, economic, besides security related legislations have such search related provisions, the need to regulate the same by executive fiat or statutory provisions is felt more and more. The raids and political motives behind it are normally matter of speculation and public perception created, but at times courts have found elements of truth in the same. The functioning of premier investigating agencies so far have shown that they conduct themselves professionally and the political pressure even when sought to be applied on such prestigious agencies is actually warded off. However, scope of such political usages can exist, if the head of such organization is a political appointee or has taken political favors in his appointment. In some of the agencies like CBI and Enforcement Directorate appointments are subjected to committee constituted as per guidelines of the Supreme Court. But out of the 11 agencies and others in state domain who make use of electronic surveillance, the appointments are not so regulated. There is a need to fill this gap too. While the searches by the premier Investigating agencies are outcome of good intelligence gathering mechanism and is normally conducted professionally with high rate of success, same can not be said to be true of smaller outfits or field units of various Departments where number of searches do not yield the expected result as per intelligence inputs. And at times object can be achieved simply by calling for information and analyzing the same through overt sources. There is, therefore, urgent need that the field units, at least should take extra care in getting their `reason to believe’ by objectively judging the veracity of the information.
Use of such powers of the state should never be carried out arrogantly.
“I am monarch of all I survey, My right there is none to dispute”
Even the apex court has denounced practices like forcibly taking deposit under the garb of voluntary deposit during searches or immediately thereafter. The accused too have their fundamental rights and legal rights to be observed even when they are required to be arrested which are well laid down and required to be followed by all investigating agency. The coercion there fore can only be construed as a tool of failed intelligence and investigative work. An experienced investigative officer should rather have faith in his own ability to muster sustainable evidence.