Project Pegasus: India is at the crossroads
A network of global media organisations, assisted by a network of global civil society organisations, came together to reveal a list of potential targets for surveillance last week.
To be sure, the list is only of potential targets; only a fraction of devices have been subjected to forensic analysis and only some of them were infected or hacked; and there is no information available about the source of the leaked list.
But it was not just the possible surveillance (which, in itself, is deeply problematic) but the technology that was potentially deployed that has shaken India’s public sphere.
Pegasus, developed by NSO and sold to “vetted governments”, takes over phones, and can track every element — messages, contacts, call logs, social media activity, app passwords, browsing history, and calls and offline conversations with access to camera and microphone. It can even be used to introduce material, which can then be used as evidence against the subject, as has been alleged in the Bhima Koregaon case.
While surveillance is legal in India under defined procedures, hacking is not — and this makes the use of Pegasus illegal. The government has so far relied on a defence that hinges on due process of surveillance, without telling citizens if Pegasus has indeed been procured by the Indian State and deployed against Indian citizens. Only a fair probe can get to the bottom of the source of the hack, and the government should launch one if it wants to clear its name — for the circumstantial evidence at the moment is weighed against it.
After all, the political executive had the most to gain from information about Opposition figures; those at the centre of the rift within the Central Bureau of Investigation; journalists who were either working on a particular story, or were in a position of influence, or were at the intersection of multiple information networks; ministers; business executives; activists; a Supreme Court (SC) judge who has not been named so far; and the woman who accused the then Chief Justice of India (CJI), Ranjan Gogoi, of sexual harassment.
Still, all theories of the source of the hack are speculative and motive alone isn’t a sufficient basis to arrive at a conclusion. It is entirely possible that the government hasn’t attempted this intrusion into citizen’s lives and rights. In that case, it represents a cyber attack against India and its citizens by either a foreign government or a private agency (if it got access to the tech). All three scenarios (Indian government, foreign government, a State-enabled or non-State private agency) are deeply disturbing.
While there is a dominant view that citizens don’t care about privacy as an electoral issue and, therefore, the issue will fade, this is too simplistic a reading. The revelations will shake Indian politics, particularly at the elite level, in six different ways.
One, there will be a subtle shift in the relationships within the Bharatiya Janata Party, between the top leadership and ministers, and between the party and the Rashtriya Swayamsevak Sangh. Narendra Modi and Amit Shah’s dominance comes from their electoral success — and, therefore, the rest of the party and ideological fraternity, even when uncomfortable with the centralisation of power, stays quiet to reap the dividends of power. But this discomfort will now turn to suspicion, for both ministers and Sangh leaders are acutely aware that their moves may be watched. This may play out, behind the scenes, in assessing the implications of unbridled power of a few. It may also, alternatively, lead to a further consolidation of power given the fear that has seeped through the rest of the party machine.
Two, the relationship between the political executive and the bureaucracy will shift. While officials were already circumspect about articulating any discomfort with government policy, the culture of fear will get even more entrenched. This fear will reduce the space for open discussions, including critical viewpoints, within the government; it will also make bureaucrats more sceptical of sharing these viewpoints outside the system, especially with the media, for who knows who is listening and watching.
Three, it will change the relationship within and among Opposition parties. They can no longer rely on the ubiquitous mobile phone to discuss strategies, ticket distribution, finances, alliance possibilities and parliamentary tactics.
At the elite level, expect a shift to secure platforms (till those secure platforms, as is the nature of technology, become vulnerable themselves). At another level, independent political mobilisation, particularly against the government, may become more difficult to organise.
Four, the revelations will have an impact on the relationship between the executive and the judiciary. It is not clear how CJI NV Ramana plans to take up the matter — there are demands for a SC-monitored probe; there is also a public interest litigation; and some whose names have been listed are contemplating going to court. Given that the government itself is a possible accused in the matter, the judiciary will have to eventually step in. How it responds will determine the balance of power in the system.
Five, there is the possibility of a legislature-executive reset. Manish Tewari, writing in these pages, highlighted the need for bringing intelligence agencies under legislative oversight. This is long due. It will still not lead to complete transparency, for the operational requirements of national security agencies will be prioritised. But it will open the door for classified briefings to people’s representatives and offer an opportunity to ask questions of those who operate largely beyond scrutiny at the moment.
And finally, most importantly, the revelations have disturbed the social contract between the State and citizens. At the root, the terms of the contract are simple. It is a nasty and brutish world out there. To ensure security and keep order — and to guarantee rights and ensure justice — citizens surrender a share of their natural rights to the State. The State exercises it for these mutually agreed upon ends, and in a democracy, the aim is to expand rather than circumvent liberty, except when necessary as defined by law.
Indian citizens, through the Constitution, gave the State power and subjected their own rights to restrictions. But they have not handed over the keys of their private and professional lives, even their political lives, to the State. If there is indeed any government involvement in the dark practices that Pegasus represents, it is undoubtedly a breach of contract and a violation of the Constitution.
India is at the crossroads. It can either use this moment to recommit itself to individual liberty or live in denial, and turn into a more fearful and closed society where independent thought itself is jeopardised. It has to choose well.