New Delhi: Ashok Lavasa, the only member of the 3-man Election Commission to rule that Prime Minister Narendra Modi had violated the Model Code of Conduct while campaigning for the 2019 general election, was selected as a potential candidate for surveillance just weeks after his dissent, according to leaked records of phone numbers that The Wire has seen.
Election Commissioners are constitutional functionaries, whose independence from government is guaranteed by statute and is considered crucial for the free and fair conduct of elections in India.
The unprecedented leak, which was first accessed by the France-based journalism non-profit Forbidden Stories and then shared with 16 other media partners including The Wire, is a list of more than 50,000 phone numbers that, the reporting consortium believes, have been marked as potential targets of surveillance by clients of the NSO Group since 2016.
The phone number used by Lavasa during 2019 is a part of this list, The Wire can confirm. When we approached the former EC member, he refused to participate in the story.
Without forensic analysis of the phone, it is not possible to determine whether the instrument was successfully infected. But the appearance of a number on the list of records we have access to as part of the Pegasus Project suggests that there was intent on the part of a client of the NSO Group to potentially infect the phone.
NSO Group says that it only sells its Pegasus spyware to “vetted governments”, but refuses to identify any of the 36 countries who are its customers.
The records show that Lavasa was selected for potential surveillance weeks after he had dissented not once but in five different matters of alleged violations of the Model Code of Conduct by then BJP president Amit Shah and Prime Minister Modi. Of the five matters, four related to complaints of alleged violations by Modi.
One of the complaints against Modi pertained to him urging young voters to dedicate their votes to the martyrs of the Pulwama terror attack in which 44 CRPF personnel were killed. Another involved Modi commenting on then Congress president Rahul Gandhi’s choice of contesting from Wayanad seat in Kerala with the jibe that Gandhi had “selected a seat where the majority is in minority.”
While the two other members of the commission, Sushil Chandra and Sunil Arora, did not find Modi to be in violation of the Model Code of Conduct, Lavasa did. He noted that Modi did, in fact, invoke the armed forces in an election campaign, which is in violation of the EC rules. It was the majority in the three-member Commission which prevailed.
Lavasa’s selection as a target of potential surveillance began several weeks after he grabbed headlines for dissenting on that key decision.
A few months after this, in September 2019, he and his family were placed under the scanner of various investigative agencies. His wife was served a notice by the Income Tax department for alleged discrepancies in income tax filings. Later in November 2019, the Enforcement Directorate began an investigation against a company that had Lavasa’s son as director, for alleged violation of foreign exchange laws.
In December, Lavasa’s sister was also served a notice by the Income Tax department over alleged stamp duty evasion.
A few months later, even though he was due to take over as Chief Election Commissioner as per norms of seniority that have been followed for years, Lavasa opted to quit the Election Commission and join the Asian Development Bank (ADB) as vice-president. He currently works there.
As senior appointments in the ADB, as with other multilateral institutions, generally take place with the concurrence – if not recommendation of member governments – Lavasa’s move to the bank was seen by political observers as a way of moving an inconvenient person out of the EC, especially in the run up to crucial state elections which were pending and would have been conducted on his watch as CEC.
Lavasa was not the only person key to the transparent conduct of elections in India who was selected as a target of potential surveillance at around that time. There were at least two others – Jagdeep Chhokar, who is the co-founder and trustee of the democracy watchdog, Association for Democratic Reforms (ADR), and Ritika Chopra, who covers the Election Commission for The Indian Express.
Both Chhokar and Chopra were selected as candidates for potential surveillance by an India-based client of NSO at roughly the same time.
Chopra declined to comment but Indian Express noted in its report after The Wire broke the story yesterday that more than 40 journalists had been targets of potential surveillance, including Chopra, and: “During that time, Chopra revealed the divide within the Election Commission over its response to complaints of poll code violations including those related to then incumbent Prime Minister Narendra Modi and then BJP president Amit Shah.”
Chhokar told The Wire that he was not sure why he may have been a target or why at that time.
“I really do not know [why], except perhaps that I have been working to improve democracy and governance in the country for the last 20 years, and that sometimes requires criticising the government of the day and/or various political parties,” he told The Wire.
When asked whether there were times when he and/or ADR had to face pressure from the government or state agencies, he said that there have been occasions when he has been asked about why certain items have been included in the ‘election watch’ reports. He said he has also received some threatening phone calls over the years and a case had been filed against ADR.
Speaking about the potential reasons for surveillance of people associated with the conduct of elections in India, Chhokar said, “I guess the powers that be do not appreciate any interference in the electoral process which, possibly, they have learnt to deal with, with some degree of success, and would not want anything changed.”
Read The Wire’s coverage as part of the Pegasus Project here.