By Siddharth Varadarajan
The registry of any court is where a citizen’s quest for justice begins and the Supreme Court of India is no exception. As of August 2, 2021, the total number of pending matters is 69,476, and every month that figure rises by around 600. The court’s 26 judges deal with the law but it is the registry that helps determine when, where – and even if – new cases, especially ‘sensitive’ ones, move, or languish.
Sometime in the spring of 2019, the telephone numbers of two officers from the Supreme Court’s registry were entered onto a secret list that contained hundreds of numbers, including some which show clear evidence of being targeted with Pegasus spyware.
NSO Group, the Israeli company that makes Pegasus, says it sells its spyware to “vetted governments” only and that each sale requires an export license from the Israeli Ministry of Defence. NSO does not disclose the names of the countries it does business with. On its part, the government of India has never denied that it bought and uses Pegasus.
The database – now leaked – to which the numbers were added was never meant to become public. The executive and the judiciary are both independent arms of the state and the very idea that one branch could contemplate snooping on another – even at a seemingly innocuous level – raises troubling constitutional concerns.
N.K. Gandhi and T.I. Rajput both worked in the crucial ‘writ’ section of the Supreme Court’s registry when their numbers were added. More than 1,000 writ petitions are filed directly in the apex court in any given year, and these are of direct concern to the Union government. Some of them are considered politically sensitive.
When contacted by The Wire, Gandhi – who has since retired from the court – and Rajput wondered why any official agency would view them or their section as a possible candidate for surveillance.
In the absence of a forensic examination of the smartphones Gandhi and Rajput used at the time – neither of which is now available – it is impossible to establish if they remained mere persons of interest or were actually subjected to intrusive surveillance.
Earlier that year, two junior court employees, Tapan Kumar Chakraborty and Manav Sharma, were dismissed from service by then CJI Ranjan Gogoi “for tampering with an order” in contempt of court case against Anil Ambani of the Reliance ADAG group, but there is no reason to believe the selection of Gandhi and Rajput – which came several weeks later – was linked to that case.
The charge against Chakraborty and Sharma was that they had deliberately dropped the word ‘not’ while uploading an order which was meant to say “Personal appearance of the alleged contemnor(s) is not dispensed with.”
While that order was processed by the writ section which handles dozens of orders every day from all 15 courts in the Supreme Court, Gandhi told The Wire, “the registry cannot possibly know whether what the court master has written down has been properly drafted or not. Our role is merely to execute the order.”
Chakraborty and Sharma were reinstated eventually by CJI Sharad Bobde in 2021 on ‘humanitarian grounds when the police failed to find evidence of any conspiracy.
A committee headed by Justice (Retd) A.K. Patnaik was tasked by the Supreme Court at the end of April 2019 with probing the order-tampering case but was unable to reach any definite findings either. “My report was inconclusive”, Justice Patnaik told The Wire on Wednesday, “in part because I never got access to WhatsApp messages from the phones the police had seized [from Chakraborty and Sharma].” He also said that he had no information about any possible link between Gandhi or Rajput and the Ambani matter.
NSO denies the list of numbers has anything to do with its military-grade spyware. But forensic tests by Amnesty International’s tech lab – conducted as part of an international media consortium’s investigation into the leaked database accessed by French non-profit Forbidden Stories – has found evidence of Pegasus infection or targeting on more than 40 phones associated with the numbers listed on it, including 12 now from India. The Wire is part of the media consortium, known as the Pegasus Project.
On the list, Justice Arun Mishra’s old number
So far, the Pegasus Project has verified around 300 Indian numbers on the database. The presence on the list of a number associated with a sitting judge was mentioned on the day The Wire began running its stories. Having now spoken to him on the record, we can confirm that a Rajasthan mobile number formerly registered in the name of Justice Arun Mishra, who retired from the Supreme Court in September 2020, was added to the database in 2019.
A confidential source with access to BSNL records said that the number in question was registered in the name of Justice Mishra from September 18, 2010 to September 19, 2018.
Since the true utility of Pegasus is that it grants the official agency using its access to encrypted communication that ordinary interception does not enable, The Wire, as part of its verification process, asked the retired judge if he had continued to use WhatsApp or other messaging apps on his phone even after giving up the number. “The number +9194XXXXXXX is not with me since 2013-2014. I don’t use this number,” he replied.
Justice Mishra – who is now chairman of the National Human Rights Commission – subsequently clarified that he had “surrendered the number on April 21, 2014”. Why this number was added to the database in 2019 by an India-based Pegasus operator is not clear.
Traces of Pegasus-associated activity in phone Christian Michel’s lawyer
Among the dozen or so lawyers across the country who appear on the database – some of whom are involved in human rights-related cases – are at least two who were representing high profile clients at the time their numbers appear in the list of surveillance probables.
Fugitive diamantaire Nirav Modi’s counsel, Vijay Agarwal, was added to the database in early 2018, after he signed on his controversial client, as was a number used by his wife. Neither of their phones was available for forensic examination.
