04 April 2023

Rahul Gandhi’s Disqualification and the Future of Political Opposition in India

With the general elections scheduled for early next year and several crucial state elections lined up for later this year, the ruling party’s onslaught on their opposition continues in India. The Bharatiya Janata Party (“BJP”) government has left no channel of state power unused in its crusade against opposition parties. It has neutralized Parliament by restricting the opposition parties from raising politically inconvenient issues and debating on bills; deployed federal investigating agencies against opposition politicians; subsidized favorable media coverage by offering lucrative advertisement revenue to select media houses; and enticed prominent legislators with money and cabinet positions to shift their allegiance in favor of the BJP to cause the fall of several opposition state governments. The government knows how to use the law and state power as tools for self-enriching goals and does not shy away from doing it at full-scale. Sadly, these matters remain non-issues during elections for several reasons, lending the BJP a free pass to pursue what scholars have termed autocratic legalism.

The disqualification of Rahul Gandhi – one of the most prominent leaders of the opposition from the India National Congress (“INC”) – is another episode of the degeneration of democracy in India. He has recently concluded a five-month-long padayatra across India, traveling around 4,000 kilometers on foot, and has constantly been questioning the government in his press conferences and public rallies.

But it would be a mistake to read Gandhi’s disqualification as just another episode. It is different and somewhat more concerning than the actions of the BJP government discussed above because of the role that the judiciary played in it. Until now, the Indian judiciary has either chosen to remain a mute spectator and adopted a non-interference approach in politically charged matters or decided matters to support executive actions, at times on questionable grounds. In causing Gandhi’s disqualification, however, the judiciary has played a positive role and effectively contributed to skewing the dynamics in favor of the BJP in the upcoming elections. In the following paragraphs, I discuss the background of Gandhi’s disqualification from Parliament and what it means for India’s democracy.

Criminal Defamation Charges Against Gandhi

Gandhi’s disqualification arises out of his comments in a 2019 election speech. Countering BJP’s portrayal of Modi as a chowkidar (a protector/caretaker) in response to INC’s corruption allegations, Gandhi questioned, “Why do all thieves have Modi in their names whether it is Nirav Modi, Lalit Modi or Narendra Modi? We don’t know how many more such Modis will come out.” Feeling aggrieved by such remarks against the Modi community, Purnesh Modi, a BJP state legislator from Gujarat, filed a criminal defamation case against Gandhi.

On March 23, a magistrate court in Gujarat held Gandhi liable for defamation and ordered him to undergo imprisonment for a period of two years. While Gandhi still enjoyed freedom as the court suspended his sentence for 30 days, the conviction cost him his seat in Parliament and incapacitated him from contesting any election for the next eight years under Section 8(3) of the Representation of the People Act, 1951 (“RPA 1951”). On his appeal, the appellate court further suspended Gandhi’s sentence till the disposal of the appeal. Gandhi could regain his position as a legislator only if he succeeded before the appellate court or secured a stay or suspension of the conviction in the interim. The Supreme Court has clarified the law in this regard in a 2018 decision. It held that if the appellate court decides to stay the conviction of the legislator while an appeal is pending, the disqualification will cease to take effect.

However, there is no law to determine what will happen if the Election Commission holds a bye-election in Gandhi’s constituency before he could pursue either of these actions and a new legislator is voted to the House. It is also possible that the appellate court fails to give its decision on Gandhi’s conviction before the 2024 elections, disallowing him to contest in the general elections. In such a scenario, a reading of Article 101 of the Constitution of India suggests that unless the new legislator decides to resign from his seat, they will continue to hold it irrespective of any subsequent court decision on Gandhi’s appeal.

On the Merits of the Decision

Gandhi’s disqualification was a natural and unavoidable fallout of the defamation conviction. It is true that the Lok Sabha secretariat acted relatively swiftly in issuing the notification under Section 8 of RPA 1951, but that’s a separate conversation to be had. It is more pertinent for the purposes of this blog to analyze the defamation conviction to appreciate the potential concerns that this development poses to India’s democracy.

Section 499 of the Indian Penal Code (“IPC”) defines criminal defamation. It provides that one commits criminal defamation when they make or publish any imputation about another person with the intent to cause harm or knowing that such imputation will cause harm to their reputation. When the constitutionality of Section 499 was challenged before the Indian Supreme Court, it emphasized that the element of mens rea and the fact of harm to the reputation of the complainant are essential to constitute the offence. Gandhi’s comments, which were nothing more than rhetorical questions, do not satisfy the elements of Section 499. Neither were any aspersions made on Purnesh Modi, the complainant, nor could it be conceived that Gandhi intended to disrepute him.

It is also critical to read Section 8(3) of RPA 1951 with Section 500 of IPC. The disqualification of Section 8(3) applies only if a legislator is convicted for two years or more. Section 500 of the IPC caps the maximum sentence for the offence of criminal defamation to two years. Gandhi’s two-year sentence was not only the maximum allowed under Indian laws but also unprecedented. Moreover, the fact that the impugned comment was made during an election campaign amid a politically charged environment, it is strange for a court to award the maximum sentence that effectively disqualifies him from contesting elections for the next eight years. For many, such orders are no less than a political obituary.

It is, therefore, puzzling why the court decided in this manner, but the puzzle doesn’t seem hard to decipher. I leave it to the readers to reach their conclusions.

But I would mention one thing without potentially crossing the line of appropriateness. The court was aware of the political motivations underlying the complaint and the consequences of a two-year sentence. It cannot bypass scrutiny and suspicion of influence/commitment to the incumbent executive by using the ‘independent actor operating under the law’ argument. Deciding the quantum of Gandhi’s sentence was the court’s prerogative, and it chose a path that unseated a popularly elected legislator, who is one of the foremost political opponents of the Prime Minister, right before the general elections, for an offence that has been held as undemocratic in several parts of the world. In such a scenario, it becomes hard to distinguish which body is the executive and which is the independent judiciary.

Concluding Remarks

Professors Huq and Ginsburg discuss in How to Lose a Constitutional Democracy how the Russian government inappropriately uses the Administrative Code to target opposition activists. Many have been arrested for petty offenses like ‘crossing the road in an authorized place’ and ‘drunkenness’. A similar example could be found in Turkey. In December last year, a Turkish court sentenced Istanbul’s mayor, a prominent opposition to Erdogan, to more than two years of imprisonment for the offence of criminal defamation. (An earlier blog on the political nature of this decision can be found here).

Despite the constant rhetoric by Prime Minister Modi that India is the ‘mother of democracy’, one cannot miss the parallels between India and autocracies like Russia and Turkey. Every next day, India becomes less of a democracy. If court decisions cause inappropriate disbalance in electoral competition, the possibility of the transition of power through a free and fair election is lost. India, then, fails to be classified as a democracy even under its minimalist conception.

The magistrate court’s decision is not an outlier in this regard. On March 31, the Gujarat High Court upheld an appeal against an order of the Chief Information Commission that asked Gujarat University to disclose the educational degree of Prime Minister Modi. Since 2014, many opposition leaders have questioned the Prime Minister’s contention that he has degrees in political science, as stated in the affidavit that he filed during the electoral process. The High Court order not only avoided any legal trouble that the Prime Minister would have faced if his claim had turned out to be false, but it also fined the incumbent Chief Minister of Delhi for seeking the disclosure in the first place.

Such court decisions and executive actions discussed in the introduction pose an existential threat to the survival of a healthy opposition in India. No independent commentator can say with certainty if these actions of the Modi government result from its authoritarian attitude or out of paranoia. What we can observe, though, is the new low that India’s democracy has reached with such developments. Many more threats seem imminent as Modi strives for his third consecutive term as the Prime Minister. It can only be hoped that the appellate courts take cognizance of the matter and ensure a level playing field for free and fair elections in 2024.

SUGGESTED CITATION  Jain, Anmol: Rahul Gandhi’s Disqualification and the Future of Political Opposition in India, VerfBlog, 2023/4/04, https://verfassungsblog.de/rahul-gandhis-disqualification-and-the-future-of-political-opposition-in-india/, DOI: 10.17176/20230404-032653-0.

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