Chief Justice of India N.V. Ramana’s decision to probe allegations that Narendra Modi authorised the use of Pegasus spyware against opposition leaders, journalists and others was widely welcomed last year. However, as the ‘technical committee’ he deputed to probe the scandal submits its report, the extent of the government’s cooperation with it is unknown.
The ‘technical committee’ – supervised by Justice R.V. Raveendran, a former judge of the Supreme Court – has provided details of the civilians who were invited to testify before it and the notices sent out to state governments. What he has not revealed so far is whether any Union government officials – serving and retired – deposed before his panel, nor whether the relevant ministries and agencies themselves parted with any information or documentation.
While the Justice Raveendran committee is called ‘technical’, the key questions framed for it by the CJI were this: Has the government acquired Pegasus? And under what law and procedure was it used against various individuals?
During the court’s proceedings, the government had thumbed its nose at the court by submitting the most perfunctory of affidavits and refusing – on grounds of national security – to answer any questions about the acquisition and use of the military grade spyware. But given the reasoning behind the Supreme Court’s order, such a stand – either before the committee or the court – would amount to contempt since CJI Ramana specifically noted that appeals to ‘national security’ could not serve as an alibi for the violation of fundamental rights.
The government, therefore, has two options: speak the truth or lie. Any statements will have to be on oath and will expose the serving or retired officials who lie to perjury prosecutions.
If Justice Raveendran’s report notes that the government refused to cooperate with its investigation, then the CJI will have to find that there is a presumption of guilt and exercise the court’s powers to compel senior officials to come clean. The cost of perjury will be raised by insisting they be the ones who submit affidavits – rather than some hapless under secretary – and that they answer questions on oath on what they know about Pegasus.
In particular, there are 10 top individuals, besides Modi of course, who likely know more about the spyware’s acquisition and use than anybody else and the Supreme Court must insist they be called to depose on oath. All men are either still in harness or received major government assignments after retirement.
1. National security adviser Ajit Kumar Doval
Doval is the Modi government’s intelligence czar. Although the Intelligence Bureau technically reports to the Union Home Minister and the Research & Intelligence Wing to the cabinet secretary and prime minister, in reality the NSA drives both spy agencies. In March 2017, he visited Tel Aviv to ‘lay the groundwork’ for Prime Minister Narendra Modi’s forthcoming visit to Israel. This is probably when the basic agreement for the purchase of Pegasus was reached.
During Modi’s visit in July 2017, Benjamin Netanyahu, Israel’s prime minister at the time, revealed that the Indian leader wanted close cooperation in the field of ‘cyber security’.
It is not a coincidence that the leaked database of telephone numbers which The Wire investigated as part of the Pegasus Project begins to record activity shortly after the Modi-Doval visit to Israel that year. Budget papers also record a sharp increase in the allocation to the National Security Council Secretariat, which reports to Doval, and it is possible some or all of these additional funds were used to pay for Pegasus.
Former intelligence officials told The Wire that given the secrecy surrounding the planned surveillance, it is unlikely that the Indian ambassador to Israel at the time, Pawan Kapoor, or the then foreign secretary (S. Jaishankar) would have been kept in the loop about Pegasus.
2 & 3. Directors of the Intelligence Bureau: Rajiv Jain (2017-2019), Arvind Kumar, DIB (2019-22)
Sensitive acquisitions from abroad, especially those of questionable legality, are usually purchased by cut-out entities so that the Indian agencies have deniability, former intelligence officials told The Wire. In the case of Pegasus, however, Israel’s export rules for the military-grade spyware require its sale to official government entities. Ron Bergman, who co-wrote the New York Times story earlier this year confirming Pegasus was sold to India in 2017as part of a $2 billion arms deal between Israel and the Indian government, explained the process in an interview to The Wire:
“The selling license is also termed that the end-user would sign an end-user certificate that says that the end user takes upon himself – this is between the Israeli ministry of defence and the end-user, so, for example, the Indian Bureau of Intelligence – saying that the Bureau of Intelligence has taken upon itself three main commitments, one is to use it only by itself and if giving it to a third party to get prior written permission from the Israeli ministry of defence, second to use it only against terrorism and organised crime. And when all of that’s signed, only then the license is executed and NSO can sell.”
If Pegasus could only be acquired by an Indian government entity, it is likely that the IB was deputed to make the purchase from NSO Group, the Israeli company which developed the spyware. In any event, based on the pattern of numbers targeted, the IB is almost certainly using Pegasus. Either way, Rajiv Jain, who was DIB from December 2016 to June 2019. A few months later he was made deputy NSA and in 2021 a member of the National Human Rights Commission.
Arvind Kumar replaced Jain as DIB in mid-2019 and stayed in harness till June 2022. Given that The Wire found forensic evidence of Pegasus activity on the phone of Trinamool Congress strategist Prashant Kishor as recently as July 2021, Kumar needs to be asked about his agency’s use of the spyware.
4 & 5. Research and Analysis Wing chiefs: Anil Dhasmana (2017-2019), Samant Goel (2019-)
Bill Marczak of Citizen Lab, the Toronto based academic research unit focused on the study of digital threats to civil society, told The Wire last year that he and his team had monitored NSO Group’s infrastructure to see where its customers are spying. “Based on a variety of scanning techniques, including DNS Cache Probing,” he said, Citizen Lab concluded that “one Indian customer, active since 2017, spies in India and abroad. A second customer, active since at least 2020, spies solely inside India.”
The unidentified agency which targeted more than 1,000 Indian telephone numbers had also targeted some 300 Pakistani ones. While the IB tracks terrorism-related individuals and entities in India and abroad, the nature of some of the foreign officials targeted in Pakistan and India – The Wire has consciously chosen not to reveal any details of this aspect – suggests a more conventional espionage-related motivation at play. If IB and R&AW have been using Pegasus in tandem, that may explain the Marzcak’s reference to “one Indian customer, active since 2017” which “spies in India and abroad”. But then who is the customer, active since at least 2020, spying “solely in India”? Is Pegasus being used by the Enforcement Directorate too?
In any event, it is obvious that Dhasmana, as R&AW chief from January 2017 to June 2019, and Samant Goel since then, would have intimate knowledge of Pegasus. Dhasmana was made head of the National Technical Research Organisation soon after retiring and remains there. It is possible NTRO is the nodal implementing agency for Pegasus. In which case, compelling his testimony (as well as that of his immediate predecessor Rajinder Khanna) would be doubly necessary.
Obviously, no official would be called upon to disclose the nature of external or terror-related targets. The Pegasus Project itself chose not to disclose these. But there would be no breach of national security were they to confirm – as they would have to, if asked a direct question on oath by a court-mandated process – that Pegasus had indeed been bought by the government.
6, 7 & 8. Union home secretaries: Rajiv Mehrishi (2015-17), Rajiv Gauba (2017-19), Ajay Kr Bhalla (2019-)
As home secretary at the time when Pegasus was likely first acquired from Israel and as the head of the ministry to which the IB reports, it is likely Mehrishi has knowledge about the purchase. After retiring as Home Secretary he was made Comptroller and Auditor General, a post he retired from in August 2020. If, and this is a big if, some attempt was made to deploy the spyware lawfully, them Mehrishi would almost certainly have been involved in authorising its use under existing guidelines for lawful interception. He would then have passed the baton to Rajiv Gauba in August 2017, just when Pegasus use was moving in to high gear. Similarly, Ajay Kumar Bhalla would have come in to the loop in August 2019. Any paperwork authorising Pegasus interceptions would carry their signatures.
9. Cabinet secretaries: P.K. Sinha (2015-2019), Rajiv Gauba (2019-)
The R&AW’s nodal department is the cabinet secretariat, which is headed by the cabinet secretary. For this reason, it is likely Sinha also knows about the purchase of Pegasus. Moreover, since the National Security Council Secretariat is “housed in the cabinet secretariat”, Sinha would have broad visibility on the use of NSCS funds or infrastructure for the purpose of acquiring and deploying spyware on this magnitude. The same is true of Gauba, who has been cabinet secretary since mid -2019, though his knowledge of Pegasus likely dates back to his earlier job as home secretary.
10. Home minister Amit Shah
While it is probable that Prime Minister Narendra Modi decided to keep Rajnath Singh in the dark as Union home minister in 2017 when Pegasus was first acquired and used, it is highly unlikely that Amit Shah was not dealt in when he moved in to North Block after the 2019 election. Certainly, the manner in which Congress leaders in Karnataka were hit with Pegasus in the run up the successful toppling of the Siddaramaiah government bears all the footprints of a ‘Chanakya’-driven enterprise. The same is true of the targeting of Prashant Kishor in the midst of the 2021 West Bengal assembly elections – as our forensic examination of his phone revealed.
If these 10 men insist on oath that the government has not bought and used Pegasus, this will raise embarrassing concerns about the national security establishment they represent. It is a matter of record that they and their departments have not bothered to investigate the possibility that a foreign government has been spying on Indians. It is one thing for the Modi government to be blasé about political opponents, journalists, human rights activists and lawyers and even businessmen being hit with spyware by some evil foreign power. But given that the list of probable targets includes two current ministers (Ashwini Vaishnaw and Pralhad Patel), a former election commissioner (Ashok Lavasa), a former Central Bureau of Investigation director (Alok Verma) and the current Delhi Police Commissioner (Rakesh Asthana), besides a handful of intelligence, army and paramilitary officers, the government’s failure to demand answers from NSO Group and Israel – as France and other countries have done – borders on criminal negligence. In short, the court will have to respond to any denial with an obvious question: if you didn’t target these people, why have you not attempted to find out which enemy of India did?
Of course, Modi and his advisors know the political consequences of truth telling will be even more devastating. Admitting to having bought Pegasus would be tantamount to admitting the government did indeed target all those individuals whose phones have shown forensic evidence of hacking, and, by implication, all others on the Pegasus Project database too.
Since this would also mean public funds and resources were used to interfere with the course of the 2019 general election and the 2021 West Bengal assembly election, everyone from the prime minister down would be liable to criminal prosecution under the Prevention of Corruption Act and the Representation of the People Act. This would be Watergate and Indira Gandhi-style election malpractice rolled into one.
Like Indira Gandhi in 1975, Modi’s political fate depends on a judge. In Justice Jagmohanlal Sinha the Allahabad high court had a man with the courage and integrity to act against a sitting prime minister. As PM, Modi has done all he can to weaken the courts and insulate himself from the possibility of such an encounter. But remember, all it takes is one gavel in one steady hand.