Gilles Verniers- who, as a French speaker may be ignorant of Anglo Saxon Constitutional Law- is a Professor of Political Science at Ashoka University. He writes in the Wire that Rahul Gandhi's disqualification is an abuse of power. By his own logic, he must be a supporter of Netanyahu in his struggle to cut the Israeli Supreme Court down to size.
The question we must ask this stupid Professor is whether he thinks the Indian Supreme Court overstepped the mark in 2013 when it laid down the rule that disqualification from Parliament is automatic once a person is sentenced to two years or more in a criminal case? Was the Supreme Court wrong, in 2016, to admonish Rahul not to indulge in 'collective denunciation'? Furthermore, in connection with the Rafale affair, the Bench had admonished Rahul in 2019 in the following words “It is unfortunate that without any verification certain remarks were made by the contemnor (Rahul Gandhi) against the Prime Minister. Mr Gandhi needs to be more careful in future.” It is a matter of public record, that it was the 2013 and 2016 actions of the Bench which prompted the harsh sentence passed by the Surat Magistrate.
Currently, we think it likely that the quantum of punishment will be reduced by a superior court and thus the disqualification will be reversed. Here, 'the process is the punishment'. Hopefully Rahul will be more cautious in his choice of words going forward.
Gilles disagrees. He thinks the Executive, not the Bench, has abused its power. The problem here is that the court case was not brought by a member of the executive. A legislator is merely a legislator unless he also holds a Cabinet or other similar office.
A Judge is never a member of the Executive while the Parliament Secretariat and Election Commission are independent branches of the Civil Service which are bound to follow the Law of the land- in this case, the 2013 Supreme Court decision
The disqualification of Rahul Gandhi from his seat in parliament, following his conviction in a criminal defamation case filed by a BJP legislator in Gujarat after a speech Gandhi made during the 2019 general election campaign in Karnataka is an important political moment that can be broken down into three aspects:
the thing has only one aspect- viz the law as established by the 2013 decision.
the law, politics, and the larger meaning of this event for India’s democracy.
There is no larger meaning. Rahul's lawyer will get him off unless the CJI takes over the case as Master of the Rolls.
On the legal aspect, Rahul Gandhi’s supporters say, not without reason, that this swift disqualification is the distortion of a law that was meant to remove from the parliament elected representatives convicted of serious crimes, like fraud, corruption, or violent crimes.
Criminal defamation is a serious crime. Rahul was inciting caste based hatred. Similarly Azam Khan was disqualified after being sentenced in a 2019 hate speech case.
In the present case, the judge handed down a sentence that matches exactly the minimum required for the disqualification clause to kick in, under Section 8(3) of The Representation of the People Act.
It is also the maximum penalty. The reason it was applied was because Rahul had ignored the the Supreme Court's warning against 'collective denunciation'
This obviously raises suspicions, even though the letter of the law remains unbroken.
Are those suspicions reasonable? The plain fact is, if you say 'all thieves are from such and such community, dig a little and you will find countless thieves from that community' then it more than likely that some person from that community will complain against you. If you have previously been warned by a Judge- and Rahul was warned by a two Judge Supreme Court Bench- then you will be punished. But 'the process is the punishment'. You can spend money and get a superior court to reduce the quantum of punishment to a simple fine. The problem is that Rahul has a lot of other defamation cases against him. So this drama will recur periodically.
The case itself is questionable. As the legal scholar Gautam Bhatia
a cretin who thinks a Judge can be sued for defamation for things he says while passing judgment!
noted in a tweet, “References to a generic class of persons are not actionable unless an individual can show a direct reference to *themselves*”.
Article 499 of the Code says any Class or Association of people can be defamed. It is enough to belong to that class or association and to show that damage has been done to win your case. In this case, the petitioner could bring witnesses who would say 'hearing what Rahul said caused me to think that maybe I should not give my vote to this person because he too is a Modi'.
In this case, Rahul Gandhi did not specifically refer to the plaintiff, Gujarat BJP MLA and former minister Purnesh Modi, in his speech.
He said all thieves have this surname. This meant Purnesh had a higher likelihood of being a thief than a person from a different caste.
Such a judgment opens the door to all kinds of new defamation claims against elected representatives, including cases of hate speech targeting entire communities.
Such laws already exist. You can't say 'all terrorists belong to such and such community'. However there are clever ways of conveying a suggestio falsi without crossing the line. Still, when caught out, a politicians will appear to offer profuse apologies while actually repeating the slur in some more veiled fashion.
Political aspect
On the political front, this disqualification blocks Rahul Gandhi from contesting in 2024 (unless a higher court suspends the decision before the seat of Wayanad gets filled, or if the initial sentence is reduced). It does not however prevent him from campaigning, as long as he is not jailed. And even a jailed Gandhi would be a powerfully evocative image that the opposition can use as a rallying cry.
This fool is not stating the obvious. If Rahul is barred from being PM till 2034, there there is no obstacle to opposition unity. Voters will be reassured that the mooncalf won't get the top job. They may hope it is someone they themselves like.
By continuously pounding Rahul Gandhi, the BJP seeks to elevate his position as the main figure of the opposition.
Obviously. You want to run against a cretin, not a smart politician.
On the one hand, the BJP needs Rahul Gandhi as a figure of mockery, a weak uncharismatic politician who embodies everything the BJP claims to be fighting against: privilege and dynasticism.
Whoa there Gilles? Which side are you on? Why not just say Rahul wears adult diapers because he constantly soils himself?
Recent critiques of Rahul Gandhi’s speeches abroad aim at presenting him as anti-patriotic.
He says India is not a nation. It is like the EU which can have Brexit or Grexit or whatever.
On the other hand, the BJP does not want to see him raise his profile in terms that differ from those they choose to define him by.
Actually, Modi would be happy if Rahul started behaving like a patriot. The plain fact is that the mooncalf is making the task of India's diplomats more difficult. Look at the Khalistani attack on the Indian High Commission. The Brits can point out that Rahul is saying India is not a nation. Why not hold a referendum or just allow East Punjab to go its own way?
In recent months, Rahul Gandhi took the opposition on the ground through the Bharat Jodo Yatra, underlining that the real opposition to the BJP government will not take place within institutions of representation. He gained credibility and demonstrated an ability to connect with people in a way that differs from the staged and distant rallies held by the Prime minister.
This simply isn't true. Modi's appears to enjoy a 78 percent approval rate. Rahul's approval rate has halved since 2019 even though the Yatra gave him a bit of a bump.
By using a law that Rahul Gandhi himself pushed for adoption 10 years ago, the government and the BJP in power raise his status to that of the principal opponent while also neutralising him.
The Executive isn't using the Law. This is an independent decision of the Judiciary. Will anybody say 'Modi forgave Rahul and let him escape jail' if a higher court reduces the quantum of punishment or sets aside the judgment entirely?
Whether this will work in favour of the BJP or backfire remains to be seen. Opposition leaders will certainly be jolted by this episode, which could strengthen their resolve to work together ahead of the election.
The problem is that 'working together' could damage their own prospects. There is such a thing as negative synergy. Modi may have kept something up his sleeve for 2024. Alternatively, the Pakistanis might do something stupid and help Modi inadvertently.
Democracy under attack
There is finally a larger aspect to this question than mere electoral tactics. The heart of the criminal defamation case against Rahul Gandhi was not that he had disparaged an entire community
No. That was the complaint and that was the judgment.
but that he had evoked the Prime Minister’s association with disgraced business figures, some of them sharing the same name.
So, he didn't even have the defense of truth or good faith. The PM is not a thief. He hasn't been convicted of any type of financial irregularity. The Gandhi family on the other hand is notoriously corrupt and has accumulated disproportionate assets amounting to billions of dollars.
Accusations of cronyism and favouritism have been a weak spot for the Prime minister, amplified by the recent Adani affair.
No they haven't. Nobody thinks Adani is bribing Modi while it simply isn't the case that Modi is a homosexual who bribes Adani into providing him sexual services.
The reaction to these accusations has not been to address them head-on, or to respond to legitimate questions, including in Parliament, but to attack those who make these critiques.
The attack on Adani was harmful to India's development. India must protect its own Corporations just as the Swiss Government has defied Brussels to help Credit Suisse.
There is a growing intolerance in India for any form of critique of the Prime minister,
because presenting the PM as a Nazi is harmful to India's foreign and defense policy. Even attacking Adani- in the context of Hindenburg- is bad for India. Rahul does not understand this. There was a time when the British PM and head of the Opposition would have been glad to be photographed with him. Now only the sad, deluded, Jeremy Corbyn will touch him with a bargepole.
and a greater will to use institutions and their instruments, including the law, to target dissenting voices.
India has an activist judiciary. This is why there is a real danger that the Bench will surprise everybody by sending the mooncalf to jail. This would be revenge for what Indira did to the Bench back in the Seventies. Don't forget, Chandrachud's daddy was elevated to the Supreme Court in 1972. Morarji made him CJI and he sent Sanjay Gandhi to jail over 'kissa kursi ka'. When Indira returned, there were hints that he would be impeached in revenge.
Just a few days ago, dozens of FIRs were lodged against citizens who merely plastered a few posters in Delhi calling for the defeat of the BJP and the Prime minister in the next election.
Why are people who break the law put in danger of prosecution? Would it not be better to offer hugs and kisses to all offenders?
Moreover, critiques against the Prime Minister are conflated as attacks against India as a whole,
which is exactly what they are if you go on foreign soil and say 'democracy is being destroyed'. If the foreign country claims to follow an 'ethical foreign policy', then you are advocating less favorable treatment of India. This may be justified if, like Indira Gandhi, the PM really is an autocrat who has torn up the Constitution and is jailing and torturing her opponents.
giving a new lease of life to a political trope that was used four decades ago to quash opposition to Indira Gandhi.
Dynasticism is not compatible with Democracy more particularly if, as in the case of the mooncalf- merit is entirely lacking.
It is ironic that some of those using these tropes today belong to the same political party that suffered from it in the past.
No it isn't. Rahul is actually damaging India's national interests. No Jan Sanghi was able to do that during the Emergency because they were locked up.
This intolerance for dissent
Varun dissents from the official BJP policies. But he does so on the basis of reasoned arguments. Sooner or later the BJP will quietly adopt one or two of his more worthwhile suggestions. Whether he will be elevated is a separate matter.
is consonant with the hyper-personalisation of power that we have seen growing in India, both at the state level and at the centre, over the past decade.
Congress has become a dynastic personality cult. But its footprint is shrinking. However, Kharge may engineer a big victory in Karnataka where the BJP took over a lot of corrupt Congress wallahs who are now defecting back to the Mothership of corruption.
In many democracies, including India, the right to criticise those who govern is constitutionally guaranteed.
Varun has criticized some Government policies. He hasn't been expelled from the Party though he and his mother have been downgraded.
In democratic theory, it is posited that citizens, including members of the opposition, have a right to contest, to critique those who govern precisely because they themselves do not have power.
In a Parliamentary Democracy, there should be criticism and scrutiny at the Committee stage. Moreover, so long as members of the house use parliamentary language and don't engage in defamation, they can say what they like on the floor of the house and their remarks won't be expunged. Rahu's grandfather, Feroze, was very successful in attacking corrupt operators- e.g. Dalmia and Mundhra- from the floor of the House. The fellow described his wife, Indira, as a Fascist. Rahul's other grandfather was an actual Italian Fascist. Quite a legacy to live up to!
What we see here is the gradual instauration of ‘crime de lèse-majesté’, a form of offense that has no place in democratic regimes.
What we have seen is a dynasty entrenching itself. Should it have 'sovereign immunity'? That is the question. Must Modi impose a State of Emergency and tear up the Constitution to save Indira's grandson from jail?
The counterargument to this is that Rahul Gandhi was found guilty in a court of law and that this was not a political judgement. As always, the impossibility of proving this or the contrary creates ground for legitimate suspicion, or at the very least raises questions.
Those questions are 'justiciable'. Let us see in Singhvi, Rahul's lawyer, can get the conviction set aside on some such grounds.
The plaintiff belonged to the party of the Prime Minister, the case was tried in a state where judges seldom contradict the BJP.
Nonsense! They have sentenced a BJP Minister to death, though the convictions proved unsafe because of fabricated evidence. What a magistrate can't do is defy the law of the land as established by the Supreme Court.
The terms of the sentence are unusual and expedient to the political context.
But they can be overturned. Why was a review petition not filed immediately? Perhaps Congress wanted this drama to play out. The problem is Chandrachud. What if the Supreme Court takes over the case and the new master of the roster takes revenge on Rahul for what Indira tried to do to his father?
What can also be questioned is the selectivity of cases. In recent months, significant opposition figures have been brought down by courts while members of the majority who have come under similar suspicion have not been subjected to the same scrutiny.
This is an allegation. Is there any evidence to back it up? The fact is some BJP legislators have been subject to prosecution.
There are two fundamental aspects to the rule of law.
Not in India. There is only one. The Supreme Court alone has the right to interpret the law. Moreover it can strike any ordinance or statute down if it considers it to violate the 'basic structure' of the Constitution. But what that 'basic structure' is nobody knows.
The first is that the rules must be applied impersonally, i.e. equality before the law.
That has been fulfilled.
The second is that those in power, those in charge of applying and enforcing the law, should be subject to it in equal measure.
A Judge who says 'all thieves belong to such and such community' would soon face disciplinary action.
A democratic test here would be for a member of the majority to be subjected to the same treatment.
Which is what actually happens. Modi runs a fairly tight ship. He gets rid of problematic people before a big scandal can unfold. Dynastic parties don't have that advantage. Predictably, they are more corrupt. On the other hand, we are forgiving towards Kejriwal because, in the nature of things, a new party will have untested people some of whom may turn out to be 'bad apples'.
What makes a political regime democratic is not merely how elections are fought and power wrested.
Quite true. That is why dynastic parties are anathema to it.
It is also the extent to which it adheres or not to democratic norms while in power.
But what those norms are, it can decide for itself save where the Judiciary has indicated otherwise. Perhaps what Gilles means is 'I am entitled to say that a party I don't like is not adhering to democratic norms'. But this is merely a subjective expression of opinion. You have the right to believe that democratic norms involve dressing up like a pussy cat and saying miaow. However, if you have been hired to teach Political Science, you can't pass off this subjective opinion of yours as part and parcel of what is objectively meant by 'democratic norms'. The test here is that of the 'reasonable man' which would require, in this case, an opinion supported by Constitutional Lawyers who have a deep understanding of the Polity in question. Verniers lacks any such understanding. The plain truth is that India has an independent, activist, Judiciary with a very narrow conception of the doctrine of political question (if, indeed, it has any such thing). Thus 'democratic norms' are those as by Law established and supported by decisions of the Bench.
When the tools of democracy and the law are used to gain political advantage, it constitutes an abuse of power.
No. This is utterly false. If a Party gains power or other political advantage though wholly democratic and legal means, no abuse has occurred save by a decision of the Courts. Gilles is a cretin. Students at Ashoka are being cheated.
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