Why the Supreme Court Must Rein In Pegasus; Govt Does U-Turn on Retro 'Tax Terror'

Plus: China money back in Indian tech scene, facial (mis)recognition, limits to medical crowdfunding, Rihanna, falsely accused of taking money to tweet support for farmers, is world's richest musician

A newsletter from The Wire & Galileo Ideas | Contributors: MK Venu, Seema Chishti, Siddharth Varadarajan, Sidharth Bhatia, Sushant Singh and Tanweer Alam | Editor: Pratik Kanjilal

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Snapshot of the day
August 6, 2021

Pratik Kanjilal

Perhaps scared of the truth, the Modi government wants to cancel a parliamentary question on Pegasus seeking details on whether the government entered into a contract with Israel’s NSO Group or not. The government has written to the Rajya Sabha secretariat stating that “the ongoing issue of Pegasus” is “sub judice” and the question should be disallowed citing Rajya Sabha rules. Incidentally, experts of parliamentary procedure aver that there is no such hard-and-fast rule. The question of electoral bonds has been pending in the Supreme Court for the past four years but that has prevented the government from fielding parliamentary questions on the controversial scheme (and apparently misleading MPs too).

The lowest example of propaganda (yet) in UP, those who collect rations, need to first listen to PM Modi’s bhaashan (lecture) and only then take the raashan (ration - foodgrains, wheat). The bag has Modi’s pictures emblazoned on it. 

Now caste may be most visible on the matrimonial pages but it clearly matters in other places too. In news underlining the iniquitous burden it imposes, almost 63% of the undergraduate dropouts at the top seven Indian Institutes of Technology (IITs) over the last five years are from the reserved categories. This is according to Education Ministry data, in response to a question in the Rajya Sabha yesterday. Almost 40% were from the Scheduled Caste and Scheduled Tribe communities. In some institutions, the SC/ST share was as high as 72%.

Ashish Jha, dean of Brown University’s School of Public Health, who has been following the pandemic situation in India closely, tells The Washington Post that it is difficult to predict when and how the next wave will land, as hundreds of millions of Indians have not been inoculated; “Much of India is still vulnerable,” he said. “That’s what keeps me awake at night when I think about the coming weeks and months.”

But the pandemic has other effects too, as Nobel laureate Abhijit Banerjee points out: “The economy is going slow due to the Covid situation. Earlier the IMF had said GDP growth would be 12.5%. Now it is saying it would be 9.5%. I apprehend it might go down to 7%. Another wave will decrease it further”. An economy already in doldrums well before the pandemic is now in deeper trouble due to the deadly virus.

The parliament building may be old, but the parliamentary behaviour of the Modi government isn’t. Parliament continues to be out of control for the ruling BJP, which has dominated proceedings in both houses by steamrolling the passage of bills as well as proceedings. A defiant Opposition had held its ground. “You cannot give me a scripted speech and ask me to read,” said TRS floor leader Keshav Rao in Rajya Sabha, responding to Deputy Chairman Harivansh. The day before yesterday, microphones and TV cameras were turned off for the Opposition. 

Opposition leaders, including senior Congress leader Rahul Gandhi, went to Jantar Mantar to express solidarity with farmers who are protesting against the three farm reform laws with kisans holding a Kisan Sansad on the sidelines of the ongoing monsoon session of Parliament. This was the first organised visit by the Opposition leaders to the protest site of farmers.

Police in UP’s Greater Noida have arrested 32 people from a fake call centre that was allegedly duping US citizens on the pretext of fixing computer viruses. Officials estimate the money stolen to be over Rs 10 crore.

And in a nod to India’s cronyism, industrialist Gautam Adani – with his many compromises, and ‘balances’ – has The Economist remarking how, “In a country whose banks have lost fortunes lending to infrastructure projects, his debt-fuelled acquisition spree has gone from strength to strength.” FT reports that the Indian authorities are threatening to fine the Walmart-owned e-commerce group Flipkart and its founders for alleged historic violations of the country’s foreign investment laws. Flipkart confirmed that it was under investigation by the Enforcement Directorate, with reports saying the group faced a fine of $1.35 billion.

The Supreme Court today has ruled in favour of e-commerce giant Amazon in its long-standing dispute with Future Retail Limited, over the latter's merger deal with the Reliance group.

Former Pakistan hockey greats have been profuse in their praise of the Indian men’s hockey team winning the bronze medal at Tokyo Olympics, as they hoped that the feat will give a boost to the game in the sub-continent. Pakistan’s best hope at the Olympics is its javelin thrower, Arshad Nadeem who will be up against India’s Neeraj Chopra in the final tomorrow. Both topped their respective qualifying groups with their throws.

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Pegasus and lawful destruction 

Records pertaining to lawful interception are destroyed regularly as per rules, the Modi government told Rajya Sabha MP, CPI(M)’s John Brittas. Brittas is one of those who has petitioned the Supreme Court demanding an inquiry against Pegasus in India. The government, anxious to avoid this issue, has been ducking a discussion and refuses to give more clarity to Parliament.

Yesterday, the West Bengal Commission of Inquiry (Justice Madan Lokur and Justice Jyotirmay Bhattacharya) released a public notice in all major newspapers requesting the public to furnish any information regarding the Pegasus snooping case within 30 days. The Supreme Court is to resume hearing this case on Tuesday. Here’s Medianama with a detailed report on yesterday’s hearing of the Pegasus snooping case in the Supreme Court. Meanwhile, five Indian journalists – including Sushant Singh, MK Venu and Siddharth Varadarajan, all contributors to the India Cable – have joined a group of 17 journalists worldwide assembled by RSF who have filed a case in Paris against NSO and others responsible for targeting their phones with spyware.

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The Long Cable

Taking stock of the Supreme Court’s Pegasus hearing

Siddharth Varadarajan

The Supreme Court held an hour-long hearing yesterday on a clutch of petitions demanding answers from the government about the use of Pegasus spyware against journalists, opposition politicians, human rights defenders and others. 

Among those who have moved the court are six individuals who appear in the leaked database of phone numbers accessed by the Pegasus Project. Two of the six – journalists Paranjoy Guha Thakurta and SNM Abdi – came armed with forensic confirmation of Pegasus having infected their phones.

The bench, headed by Chief Justice of India N.V. Ramana, questioned the petitioners about the timing of their petitions, given that word had first emerged in 2019 of Pegasus being used against 121 persons in India. The judges also wanted to know what other evidence they had besides media reports and why none of the alleged victims had so far filed an FIR, i.e. a criminal complaint, with the cyber wing of the police.

These are valid questions, even if one would have assumed the answers are obvious.

The main reason the present petitions have been filed now rather than in 2019 is because some of the persons who have moved court discovered they had been targeted only after the Pegasus Project stories were published last month. Besides, unlike in 2019, the scale of the targeting and the proof of the use of Pegasus (via forensic tests) have made this surveillance a matter of urgent public interest.

As for evidence, besides media reports, at least two of the persons who have themselves approached the court have forensic reports prepared by Amnesty International’s tech lab which confirm the presence of Pegasus on their phones. In all, there are now 13 such reports from India, and more than 40 worldwide. In France, a French government inspection has validated the results of Amnesty’s forensics on three smartphones. Even before that technical validation, the French government had demanded an explanation from Israel based merely on media reports.

CJI NV Ramana. Photo: Bar and Bench

On the issue of FIRs, we need to remind ourselves that 19 individuals in India wrote to the government in November 2019 complaining about the use of Pegasus against them. This was after they had been informed by WhatsApp about the fact that their phones had been compromised. Their complaint does not even appear to have been acknowledged. Nor did the government, which had the power and the duty to order an investigation into phone hacking, show any interest in probing the matter. NSO Group, which makes Pegasus, has told a California court (where WhatsApp has filed a suit against it) on oath that it only sells its spyware to governments. Given this undertaking, it is reasonable to assume India’s Pegasus targets have been selected by a government agency. Against this backdrop, and given the scale on which individuals in civil society appear to have been targeted, it is futile to imagine the ‘ordinary’ process of law can provide victims any answers, let alone justice.

Simply put, there is enough verifiable information besides news reports, especially 

1. the government’s acknowledgement in Parliament of WhatsApp’s letter informing it of 121 Indian Pegasus targets, 

2. the Pegasus Project’s forensic results, and 

3. the French government’s own forensic tests,

to indicate that what we are dealing with is the large-scale deployment of an illegal method of surveillance against individuals who cannot possibly be considered threats to national security or public order. 

What N. Ram and the other petitioners before the Supreme Court are contending is that there has been a systematic violation of fundamental rights by an official agency over a long period of time. In fact, the forensic examination of the phones of Prashant Kishor, M.K. Venu and Sushant Singh showed that Pegasus has been used against them as recently as June and July 2021. Which is why the Supreme Court needs to order an independent judicial probe into the matter.

Any legitimate national security concerns the government has can easily be excluded from the inquiry. The Wire itself took care not to publish any details from the leaked database which were indicative of espionage or counter-terrorism. But no democracy or society governed by the rule of law can countenance the use by a government of intrusive surveillance against political opponents, journalists, lawyers, court officials, rights activists, victims of sexual harassment and others, that too using spyware paid for out of public funds.

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Chinese money back in Indian tech scene

There are signs that Chinese money is making a comeback in the Indian tech scene after a dramatic drop last year, reports South China Morning Post. The flow of funds from Hong Kong – often seen as a proxy route for investments from mainland China – plunged from $168 million in 2018 to a mere $2 million last year, according to Venture Intelligence, after New Delhi announced rules last May aimed at preventing Chinese firms from buying up weaker Indian companies during the Covid-19 pandemic. But in the first six months of this year, funds from Hong Kong rose to $80 million. However, venture capital investments in India from mainland China plunged from $1.2 billion in 2018 to just $76 million in the first six months of 2021.

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Under pressure, Modi government will return money to Cairn and Vodafone

The Modi government has given in to pressure and fear of embarrassment of its assets being forcibly seized abroad after it lost in at least two international arbitration tribunal verdicts in the Vodafone and Cairn cases, which ruled against India's retrospective tax demands this past year. The government had earlier displayed defiance and filed appeals against both the verdicts. But yesterday, it brought in legislation to nix the idea of retro tax and passed the controversial legislation within just seven minutes amidst intense protests. The retrospective tax law was the then finance minister Pranab Mukherjee’s baby, brought in as part of the 2012-13 budget and he justified it in his book, The Coalition Years 1996-2012. Now, tax demands made on transactions that took place before May 2012 shall be dropped and any taxes already collected shall be repaid, minus interest.

Cairn Energy, which was awarded $1.2 billion by an international tribunal has filed cases in at least ten global jurisdictions, including the US, UK, Canada and Japan to seize Indian assets in lieu of the award as the government didn't abide by the tribunal's decision. But now, it has given in.

Meanwhile, Ashwini Mahajan, a member of the Swadeshi Jagran Manch has declared that this decision shows the disadvantages of foreign investment, and has been questioned, in turn, by Vijay Chauthiwale who is ‘in-charge’ of the BJP’s foreign affairs department.

Cairn was guarded in its response: "We have noted the introduction to the Indian parliament of the Taxation Laws (Amendment) Bill 2021, which proposes certain amendments to the retrospective taxation measures that were introduced by the Finance Act 2012. We are monitoring the situation and will provide a further update in due course."

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Facial (mis)recognition rules

A report by two Indian scientists, Gaurav Jain and Smriti Parsheera, audited performance of facial processing tools on Indian faces and led to some worrying conclusions. They found that facial recognition tools failed far more in identifying Indian women than Indian men. Also, while some tools improved their accuracy after the 2018 US study – called Gender Shades – one of them still left Indian women undetected at high levels, reports Scroll This comes as the National Testing Agency, which conducts several exams including the Joint Entrance Examination (Main) as well as Advanced, and the National Eligibility cum Entrance Test (NEET), has floated a tender for facial recognition and fingerprint verification to verify a candidate’s identity on a real-time basis. 

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Reportedly

Humare Mehul bhai – as Narendra Modi referred to the fugitive businessman who owes India’s public crores and has fled since – refuses to go away. Mehul Choksi is in Antigua now, despite attempts at kidnapping him to Bermuda and trying to ensure he gets deported to India, by hook or by crook. What is intriguing is that The Antigua Observer, a newspaper from there is reporting that the award of citizenship to him was done only after “due clearance by Indian authorities, including Passport office, MEA, SEBI etc”. The Congress has taken this up and put out the screenshot. The trouble is, those in India find that the Antiguan website is inaccessible. What’s the truth? On its part, SEBI has disputed the claim: “SEBI has neither received any request from the Citizenship by Investment Unit (CIU) of Antigua for updates on any investigation nor provided any such information to CIU”.

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OIC issues statement on Kashmir, India rejects it

India yesterday rejected a statement on Jammu and Kashmir by the Organisation of Islamic Cooperation (OIC), in response to the statement issued by the General Secretariat of the OIC on the second anniversary of the withdrawal of the special status of Jammu and Kashmir. In the statement, the OIC General Secretariat had reiterated its "call to revoke all these steps [taken on August 5, 2019]". The OIC General Secretariat also reiterated its call on the international community to increase its efforts to resolve the issue of Jammu and Kashmir in accordance with the "relevant UN Security Council resolutions". The Modi government had claimed a major diplomatic victory when the then foreign minister Sushma Swaraj had been invited by the OIC to attend its session in 2019.

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Prime number: 29.8% vs 61.8%

The truth about merit is obfuscated. In 2020, the General category aspirants who gave the NEET exam were 29.8%. But the General category aspirants who were admitted in a deemed college were 61.8%. Deemed medical colleges are 10% of all MBBS seats in India. They have no caste-based reservations and the fees for the undergraduate MBBS course is Rs 1-1.2 crore. If you can pay your way, you can claim to be meritorious.

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Gulf relief for Kerala NRIs

Thousands of Non Resident Indians (NRIs), especially from Kerala, heaved a sigh of relief as the UAE allowed entry of expatriates with valid residency visas who have taken both doses of an approved COVID-19 vaccine. But, they will still have to cross multiple hurdles to make their way back there. Many of them now have to renew their visas since expatriate residents who reside outside for more than six months continuously will have their residency visas automatically cancelled, which means they need to reapply for the permit. Meanwhile, Britain has eased restrictions on Indian travellers, moving India from the Red to the Amber list. The only problem is Indian vaccines are still not recognised by Britain, so Indians will have to undergo a compulsory 10 day quarantine after they are allowed in.

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Deep Dive

Not all new Indian cinema was born in Bombay, Calcutta or Madras. One pioneer helped build the Kannada movie world in Mysore. In the year of his birth centenary, this is the story of D Shankar Singh told by Seema Chishti (a contributor to The India Cable).

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Rihanna world’s richest woman musician 

Pop star Rihanna, whose one tweet on the shutdown of the internet in the wake of farmer protests had the Indian Ministry of External Affairs’ knickers in a twist, has been declared by Forbes magazine to be the richest woman musician in the world. Her net worth is estimated at $1.7 billion. So much for those who said she had been paid to tweet her solidarity with Indian farmers.

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Limitations of medical crowdfunding

Medical crowdfunding has become essential in India, but it’s leaving many behind, finds this report in restofworld.org. “While Ketto and Milaap have helped thousands, minorities find themselves ineligible, or targets of abuse”.

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Op-Eds you don’t want to miss

• Hindutva’s goal of a uniform culture in the entire country seems to be facing insurmountable hurdles, with the Assamese and the Mizos involved in a mini-warlike situation. Such a situation had not cropped up even when the Congress or other regimes ruled in Delhi, writes Julio Ribeiro.

• Ajaz Ashraf writes that the Muslim intelligentsia’s welcoming of Mohan Bhagwat’s speech is flawed and seems an insult to all those who languish in jail for their opposition to the Sangh’s brand of majoritarian politics.

• Historical knowledge, sensitivity and an accommodative spirit need to accompany any dialogue and negotiation to resolve the Assam-Mizoram crisis, writes Kham Khan Suan Hausing.

• Neelanjan Sircar writes for World Politics Review, that “Modi’s aura of invincibility is starting to crumble”.

• Pegasus has shown just how easy it is now for governments to spy on people. Such tools being in wide use has roused calls for legislative action to keep them under democratic supervision, write Abhinav Mehrotra and Chhaya Bhardwaj.

• Pegasus can transmit data. But humans have to process it. Praveen Chakravaty asks where is this team, who is managing it and how does it operate?

• If the Prime Minister is serious about a peace settlement in Nagaland, he must remove Governor R Ravi from negotiations and appoint a new political representative, writes Bharat Bhushan.

• Prabir Purkayastha details out the new dangers that weaponizing malware, cyber weapons like Pegasus by nation-states pose to the world.  

• The subject that we know a lot about, albeit one-sidedly, is the Covid-19 situation in Kerala, writes Karan Thapar as he explains what Kerala did right and where India went wrong. 

• The Unlawful Activities (Prevention) Act is a blot on the nation that must be removed at the earliest, writes Prabhat Patnaik.

• Violence against girls and women, especially those from marginalized communities, has been normalized in India by impunity for such crimes and victim blaming, writes Jayshree Bajoria.

• Shama Zaidi voices her opinion on the problem with Hindi films, that Directors want “dialogue-baazi”, in edited excerpts of her conversation with Anubha Yadav.

• For The New Yorker, James Wood writes on Sanjeev Suhota’s novels of arrival and departure and how in China Room, “the journeys of immigrants divide stories and selves.”

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Listen Up

Anurag Behar speaks on whether India needs a roadmap for reopening schools and how it can be done safely.

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Watch Out

One of the best known academic experts on India’s vaccination policy has said the Modi government simply cannot meet its target of vaccinating every adult by the end of the year. R. Ramakumar, a Professor at the School of Development Studies at Tata Institute of Social Sciences, said this is both because the supply of vaccines will be nowhere near sufficient and, second, because the vaccination rate cannot rise to the level required to meet the target. Prof. Ramakumar lists upto eight mistakes made by the Modi government that are responsible for this situation.

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Over and Out

The Wall Street Journal pays tribute to Satyajit Ray’s work as it marks his centenary year, reviewing the Criterion channel’s screening of 16 of Ray films. “One hopes a more lavish and permanent tribute to Ray—along the lines of Criterion’s boxed sets of Kurosawa, Bergman and Fellini—will arrive eventually. He certainly deserves similar fêting.”

On the Netflix teen comedy “Never Have I Ever,” Maitreya Ramakrishnan portrays Devi, an Indian-American high school student who navigates adolescence more awkwardly and is profiled here by The New York Times.

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That’s it for today. We’ll be back with you on Monday, on a device near you. If The India Cable was forwarded to you by a friend (perhaps a common friend!) book your own copy by SUBSCRIBING HERE.