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

06 March 2020
Shahid Tantray for The Caravan
Shahid Tantray for The Caravan

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.

Aathira Konikkara is a reporting fellow at The Caravan.

Keywords: Devendra Fadvanis Election Commission Supreme Court