Who is Ashwini Upadhyay? An advocate repeatedly admonished by the Supreme Court for filing frivolous pleas spreads fake news with impunity
26, May 2023 | CJP Team
CJP dives in and brings you a profile of the man who has been raising false alarms about India’s religious demographics for a while. Here’s a profile of notorious PIL-filer, Advocate and BJP Leader, Ashwini Upadhyay and his political trajectory revealing a propensity for engaging in anti-Muslim speech and getting repeatedly rebuked by India’s court.
Born in Allahabad in Uttar Pradesh, Ashwini Upadhyay is a decidedly political figure. A lawyer in the Supreme Court by practice, Upadhyay has a history of being involved in matters that bring him in the public eye. His first tryst with politics came with his participation in the Anna Hazare anti-corruption movement. Following this, he joined the Aam Aadmi Party, only to be removed by the party for ‘anti-party’ activities. According to news reports, Upadhaya alleged that the party was receiving funds from the Ford Foundation and secretly forming an alliance with the Congress. Prior to his expulsion from the party, he also called Arvind Kejriwal a “CIA agent”.
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Ashwini Upadhyay has formerly also been spokesperson for the Delhi unit of the Bharatiya Janata Party (BJP). However, more than his political prowess, he is known for his voracious pattern of filing PILs (Public Interest Litigation) in the Supreme Court on matters mainly pertaining to communal issues. Called by The Print the uncrowned king of ‘political interest litigation’, Upadhyay is notorious for filing PILs. Upadhyay has filed various PILs in India’s apex court, ranging from petitions to grant minority status to Hindus to demanding the name changes of several places named after Mughal rulers. According to a 2018 report by the New Indian Express, Upadhyaya holds a record of filing 50 PILs in 5 years. Many of his claims, especially on his social media, often seem to reflect a decided bias against Muslims and Christians. These claims, four of which have been debunked by CJP, often veer on the edge of misinformation and propaganda.
Propaganda and misinformation have been rife in India against its religious minorities ever since the rise of the BJP and its curtailing of civil liberties in the guise of spreading Hindutva. Ashwini Upadhyay reflects one such sinister page of this project that seeks to grant minorities in India a second-class status. He is also active on his Twitter account, where he routinely makes videos and tweets coloured with a communal undertone. He frequently argues for population control and sterilisation and even stated on his Twitter that the Constitution’s goal is to institute a ‘Ram Rajya’.
Upadhyay is also known to be one of the six people arrested for shouting anti-Muslim slogans in Delhi’s Jantar Mantar on August 8, 2021. He was released on bail after two days of judicial custody. He had claimed he had left the event and was in Ghaziabad when inflammatory slogans were raised at Jantar Mantar. The event caused a huge uproar over the genocidal nature of the slogans given. Reporting for the National Portal, a web portal for news, journalist Anmol Pritam shared on Twitter how he was forced to chant ‘Jai Shri Ram’ after being surrounded by a Hindutva mob.
Ironically Upadhyay filed a PIL related to hate speech just after he and five others were arrested under sections 153A (Promoting enmity between different groups on the grounds of religion, race, place of birth, residence, etc.) and 188 of the Indian Penal Code (disobedience to order duly promulgated by a public servant, in this case, it is likely to refer to Covid related restriction still in place in public spaces) itself. His petition was for the Centre to scrutinise international laws as he argued that existing CrPc codes are inadequate to deal with the issue of hate speeches and rumour-mongering. Along with this record of filing innumerable PILs, Upadhyay also makes public hate speeches with spurious and unsubstantiated claims while he, along with several other leaders owing allegiance to saffron politics enjoy an impunity from penal prosecution. Such sustained hate speech has contributed to the vitiation of the public sphere in the country.
In 2015, Upadhyay filed his first PIL in support of a uniform civil code. On December 7, 2015, the bench headed by the outgoing Chief Justice of India, TS Thakur, rejected the argument and cautioned Upadhyay not to squander the court’s time. Upadhyay was told to make his argument before the Parliament in its place. Despite this rebuke, Upadhyay persisted.
Upadhyay is a frequent petitioner in the courts, and his PILs almost always reflect the goals and sentiments of the ruling party in India, the BJP.
For instance, the Supreme Court in 2022 had asked for comments from state governments on the PIL filed by Upadhyay urging that there be a district-wise allocation of minority status so that Hindus in areas where they are numerically a minority can be given the status and provisions accorded to minorities, such as the right to institute their own religious, educational institutes and so on. Most of the states, including Gujarat, Tamil Nadu, Kerala, Karnataka, and Uttar Pradesh, responded by saying they wished to uphold the status quo – that is, retain the status of currently designated minority communities.
Instead of the baseless statistical claims made by Upadhyay being subject to detailed and objective scrutiny –given that here is a man abusing his position as lawyer before the highest court in the land –they are picked up and amplified as truth through spurious media channels and by speeches by men and women belonging to the BJP and its allied organisations. Out there in a shrill cacophony, these have a singular purpose: to generate hate and ill will towards minorities.
A quick look at the insidious claims made by Upadhyay that, bit by bit construct a huge mountain of misinformation. And prejudice.
- In April 2021, a bench led by Justice Rohinton Faliman Nariman heard a PIL filed by Ashwini Upadhyay seeking to control black magic, superstition, and mass religious conversion of SC/STs through intimidation, threats, and gifts. Observing that the PIL was nothing more than a “publicity interest litigation” of a “harmful kind,” the bench warned the petitioner that if the matter were pursued, heavy costs would be imposed.
- In April 2022, the Supreme Court declined to entertain Ashwini Upadhyay’s petition challenging the constitutionality of the Wakf Act, 1995. A Bench of Justices DY Chandrachud and Surya Kant observed that the constitutionality of a statute cannot be challenged in the “abstract” as a mere “academic exercise”.
- In May 2022, the Delhi High Court, while issuing notice on a petition filed by Advocate Ashwini Kumar Upadhyay seeking a declaration that the song ‘Vande Mataram’ shall be honoured equally with the national anthem ‘Jana-Gana-Mana,’ expressed its displeasure for publicising the filing of the petition in the media.
- In December 2022, while hearing arguments in a PIL filed by Ashwini Upadhyay alleging “mass conversions” across the country, the Supreme Court had taken exception to certain false and defamatory statements that had been made against minority religions by the petitioner. The Court had even directed Senior Advocate Arvind P Datar, representing the petitioner, to ensure that such remarks were not recorded. This came after Senior Advocate Dushyant Dave, who was representing certain Christian organisations seeking to intervene in the case, told the bench that the petitioner had made extremely offensive allegations against other religions.
- In January 2023, the Supreme Court had commented critically on the conduct of BJP leader Ashwini Upadhyay in filing different petitions before different benches of the Supreme Court and the Delhi High Court on the same subject of religious conversions. Expressing his disappointment, CJI Chandrachud had told Upadhyay’s counsel, Senior Advocate Gaurav Bhatia that “It seems that PIL petitioners don’t think they’re bound by rules of pleadings….You cannot keep on withdrawing and filing new petitions”
- In February 2023, the Supreme Court dismissed a PIL petition filed by the BJP leader which sought for the renaming of such historical places and cities that are currently named after “foreign barbaric invaders”. The bench asked Upadhyay if he wanted to “keep the country on the boil” by filing such petitions.
Why must we counter hate speech and fake news?
In Nazi Germany, there was incendiary propaganda against the Jewish people, which normalised antisemitism. In 1994, the Hutus constantly aired misinformation against the Tutsis on the radio in Rwanda. More than 8 lakh Tutsi people were killed in the genocide that followed. Scholars note the only difference between then and now is that there were no alternative news sources – or fact checks- to verify or falsify such claims back then. In India, for decades surreptitiously through organs of far right organisations and now, since 2014, with complicit official support such propaganda is sought to be given official sanction and heft.
What begins with falsified claims, by the BJP leader Upadhyay then surfaces in hysterical television debates and WhatsApp groups
While the source of most of the vile propaganda that is re cycled and regurgitated in a myriad forms centres around the issues tackled by CJP in HateBusters 1,2,3 and 4 it is interesting to de-construct its original source, what gives it currency (electronic media channels) before it flows corrosively into various legitimate and illegitimate information streams.
It is imperative that all such tall claims and statements by Upadhyay be subjected to detailed scrutiny, given his position as a lawyer in India’s highest judicial body. In this case, Upadhyay has given the above-mentioned speech and made certain claims to promote and further majoritarianism, an ideology propagated by the BJP and its fountainhead RSS. All have a singular purpose which is to generate hate and ill will towards minorities.
You may find CJP’s Hate Busters on four of Upadhyaya’s claims here, here, here, and here.
We urge that you share this content in as many forums as possible to stem the tide of hate.
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