Devendra Fadnavis closed the door on his own defence: Petitioner in the election-affidavit case

Shahid Tantray for The Caravan
06 March, 2020

On 18 February, the Supreme Court dismissed a review petition filed by Devendra Fadnavis, the former chief minister of Maharashtra, against a ruling by the court regarding omissions in his elections affidavits. In October 2019, the apex court had ordered a local court in Nagpur to initiate proceedings against Fadnavis for the non-disclosure of two criminal cases in his election affidavits. Fadnavis had failed to include the cases in the affidavits he submitted for contesting three assembly elections in Maharashtra between 2004 and 2014.The cases, which date back to 1996 and 1998, deal with cheating and forgery, respectively. In October 2014, Satish Uke, a lawyer, approached the court of the Judicial Magistrate of First Class in Nagpur and demanded action against the Bharatiya Janata Party leader for concealing information that he was mandated to reveal to voters.

Fadnavis’s counsel argued that the two cases were not required to be included in the affidavits by law, as charges had not been framed in either of the cases. While Uke’s petition was dismissed by the JMFC, and later by the Bombay High Court, the case was decided in Uke’s favour by the apex court, which cited previous judgments that made it clear that a candidate was required to furnish details of all criminal cases, regardless of whether they had reached the stage of framing of charges.

In a conversation with Aathira Konikkara, a reporting fellow at The Caravan, Uke explained the legal precedents that establish why a public record of a candidate’s criminal history is of significance in a representative democracy, and why the concealing of past cases by Fadnavis amounts to a serious offence. “The only defence that was possible was the ignorance of law,” Uke said. “He cannot use this defence because the election commission has repeatedly issued instructions that you are required to submit information of cases where court has taken cognisance.”

Aathira Konikkara: What was your response to the Supreme Court’s dismissal of the review petition filed by Devendra Fadnavis?
Satish Uke: In the first case on this issue—Union of India vs Association for Democratic Reforms, in 2002—the Supreme Court told the election commission and the government of India that in order to stop the criminalisation of politics, the only way is to at least share the criminal history of a candidate with the voters, so that the voters can make a decision as to which candidate should be elected. For the purity of election and for the purity of democracy, Supreme Court gave directions for such reforms. Once the directions have been given, it becomes mandatory to follow those directions. After all these changes were introduced in the election process in 2003, the government of India brought in an amendment to The Representation of  Peoples Act, 1951 with respect to the filing of nomination papers before a returning officer. In the affidavit submitted by candidates, they had to declare criminal antecedents of only two categories. They drafted such a law and enacted it in Parliament and it received the president’s assent. Accordingly, the election commission prepared its format [This format for election affidavits was issued in 2003. The new format did not seek information from candidates about cases where a court has taken cognisance of the allegations against them].

After that, in 2003, the People’s Union for Civil Liberties—a human-rights organisation—filed a petition before the Supreme Court. When this matter came up, the Supreme Court noted that the government of India has not properly followed the orders given in 2002 in the matter of Union of India versus ADR. According to the Article 142 of the Constitution, any order passed by the Supreme Court is binding as a law. These are inherent and extraordinary powers of the Supreme Court. The court said that despite its directions being recognised as law, you [the government] did not follow the directions and frame a law accordingly. It issued fresh directions to the election commission asking why this category [of cases where a court has taken cognisance of the allegations against a candidate] was kept out of the affidavit format and why you are not seeking information regarding the criminal proceedings in which court has taken cognisance against the candidate. Why was this category not included? It gave directions to the election commission saying that under the constitutional powers of the election commission of India, it can frame rules and issue directions. So, there is no need to go to the Parliament again.

The SC gave directions to the election commission of India to issue instructions such that a category is included wherein a court has taken cognisance against a candidate and that the candidate has knowledge of the same. The Supreme Court and the election commission expected that when a candidate files the nomination papers, the candidate would submit all the information in his affidavit regarding any matter where a court has taken cognisance against him until six months prior to the filing of nomination. This became the law since 2003 and the election commission included this in its rules.

There were two pending cases against Fadnavis from 1996 and 1998. Accused summons were issued to him in these cases after cognisance was taken by the competent court. When he received the accused summons, he had the knowledge that the court took cognisance of the matter. The term “cognisance” means that this is when a court thinks that there should be a trial against the accused in a criminal case. This stage is called “taking cognisance.” After that, the magistrate issues a summons to the accused. And when the accused receives it, it means that the accused now has the knowledge that the court has taken cognisance against him. So, in both the matters, Fadnavis had received accused summons. After that, he had presented himself in court and submitted a bond of Rs 3,000 each in both the matters and was granted bail.

AK: And he did not disclose these cases from 2004 to 2014?
SU: He did not disclose it in the election of 2004, in the election of 2009 nor in the election of 2014, even as both the cases were pending in court. This information was sought so that the voters would know the criminal history of a candidate. This is the voters’ right to information. The provision itself is called right to information. This provision is in section 417 of the Indian Penal Code. When we take something from someone without giving full information or false information, that is nothing but cheating. So, this is concealing of information from voters and amounts to cheating them.

According to the Representation of Peoples Act, regardless of whether a candidate is elected or not, if he submits a false affidavit, there can be a case against him. There will be criminal consequences.

If he gets elected, he is also liable for disqualification. He will be disqualified as per section 100 and section 123 of the Representation of Peoples Act. Section 100 means proper acceptance of nomination papers. Section 123 means by way of corrupt practices. So, concealing any information also amounts to corrupt practices. The Supreme Court has stated in different judgments that even concealment of information amounts to corrupt practices. And that also amounts to improper acceptance of nomination papers. These are civil consequences.

Besides this, the criminal consequences would be that under section 125A, there are three-four categories. One of the categories is with respect to concealing any information. Any information means that which is required by the Representation of Peoples Act or rules framed thereunder. If anyone conceals such information, he will be prosecuted as per provision of the Representation of Peoples Act—section 125A, which is punishable with imprisonment of six months or Rs 10,000 fine or both. These are the criminal consequences.

The court had expressed concern about the criminalisation of politics which affects elections and democracy more than anything else. If someone hides his criminal antecedents, this would be a most serious offence as per section 125A. The cases filed against him [Fadnavis] had a quantum of punishment of Rs 500 fine. There was no scope for imprisonment.

AK: The cases against him from 1996 and 1998 dealt with charges of cheating and forgery?
SU: Yes. The Supreme Court judgment has all the details of the cases.

AK: Fadnavis had alleged that the case is politically motivated.
SU: He knows very well that this was not a politically motivated case. I pursued the case up to Bombay High Court by myself. If I took the help of a senior counsel in the Supreme Court [Kapil Sibal] and he is incidentally from the Congress that does not mean that this is a politically motivated case. I have taken up several complaints against him where Sibal did not represent me nor did those cases reach the Supreme Court. He [Fadnavis] said that he knows who is behind this to mislead the media and to silence the opposition.

AK: Before your petition reached the Supreme Court, the Bombay High Court had dismissed your demand to initiate criminal proceedings against Fadnavis. On what grounds did the high court dismiss the case?
SU: Firstly, the JMFC court dismissed the matter. When we appealed in the sessions court, it decided in our favour. He [Fadnavis] appealed against the sessions court decision in the high court. Bombay High Court stated that it is not legally necessary to submit information regarding cases where a court has taken cognisance. We appealed before the Supreme Court. In October 2019, the Supreme Court decided in our favour and referred to all the judgments till 2019, quoting the precedents. So, Fadnavis had nothing left to say in his review petition. The Supreme Court had laid down the law in 2002 and 2003. The high court could not take into account because he was successful in misleading the high court.

AK: Mukul Rohatgi, who represented Fadnavis in the case, said in court that since charges were not framed in either of the cases, there was no need to disclose them. What was your counter-argument to this?
SU: In the PUCL and ADR cases I mentioned, the court had said that criminal antecedents would include cases where charges have been framed, cases where the person has been convicted and thirdly, cases where a court has taken cognisance. Since the 2002 ADR judgment, the Supreme Court expected information to be furnished in all three categories. But even after the law was passed by the parliament and rules framed by the election commission, only the first two categories were included in the form; that of framing charges and of conviction. If only these two categories were relevant, then in the PUCL judgment, the Supreme Court would not have reprimanded the state asking why you left out this category in which the court has taken cognisance. It was only after this reprimand that the category was included.

From 2003 to 2014, it has been nine years since the law has developed. Despite this, if you are not including matters where the court has taken cognisance, and goes on to become the chief minister, then his statement that he was not aware that this information was required will go against his favour. He knew that the court had taken cognisance in both the cases; he had paid the bond for bail. The affidavit form—form 26—is supplied in printed form by the election commission. Your task is just to fill in all the details asked for in the readymade form. You are legally bound to do this duty. And you still say that it is not legally required to submit information about cases where cognisance was taken. This means that you do not recognise the form. You had knowledge of the two cases and deliberately did not write it despite the information being sought. He has closed the doors to his own defence.

In the review petition, he has stated that it is not necessary to provide information about these cases. He has admitted that he has the knowledge of the two cases. Now, it has come on record that he has deliberately concealed them. The only defence that was possible was the ignorance of law. He cannot use this defence because the election commission has repeatedly issued instructions that you are required to submit information of cases where court has taken cognisance. There is a column specifically made in the affidavit for this information. He is a lawyer. If it was a layman in his place, he would have apologised to the court at the outset and said that he did not know about such a law. Court would have let him off with minimal punishment. But Fadnavis fought all the way to the Supreme Court reiterating the same point. If he had said at the JMFC level or sessions level then the court would not have been so strict with him.

AK: What is the status of the case in JMFC now? Do you think the case might be fast-tracked now that the BJP is not in power in the state?
SU: Around the same time [when the case was being heard], the high court issued directions that there should be a separate fast-track court for cases against public representatives in Maharashtra. Cases of public representatives such as members of parliament, members of legislative assembly and corporators of municipal corporations will only be heard before the chief judicial magistrate so that it can be expedited. The court has also been given a time limit of two years to dispose the cases after framing of charges. On 18 February, the Supreme Court dismissed the review petition and on 20 February, this case was heard before the CJM and Fadnavis appeared before the court. He applied for bail by paying a PR bond—Personal Recognisance bond. He was granted bail on a PR bond of Rs 15,000 on the condition that he will cooperate with further proceedings.

AK: Do you think the dismissal of Fadnavis’s petition paves the way for more such cases against other politicians on the issue of non disclosure?
SU: Definitely, this has become a lesson. I don’t think anyone will forget to write down their cases now. This is the most important judgment of the Supreme Court with respect to the right to information of voters. It has practical applicability of the law. Supreme Court itself has demonstrated the applicability of its own judgment. So, I don’t think anyone would dream of forgetting to furnish details of criminal cases against them. Now, the chances of someone forgetting to share information on even small-time cases is nearly nil after a judgment widely reported in print media and electronic media. The cases have to be not just written but also published twice in two newspapers widely circulated in the concerned constituency. And it has to be broadcast at least thrice on the local cable network. There was also a judgment by justice [Rohintan] Nariman this February, which stated that the party which gives a ticket to such candidates has to publish the criminal antecedents of the candidates and a justification as to why the candidate was offered a ticket to contest on the party’s website.