The word “law” is a combination of “law” and “war”. it refers weaponization of law, and regarding legal systems, to threaten, harm, or outlaw an opponent (often, a political opponent). In flourishing constitutional democracies, judiciaries are often alert to the potential for powerful political figures to enforce laws against their rivals, and quickly roll back such attempts.
Although conviction Rahul Gandhi, now former Congress MP from Wayanad and later disqualification from Lok Sabhapresents a disturbing example of the generalization of law in India.
Let us take first the case of criminal defamation. Proceedings were initiated against Mr Gandhi in a Surat court for a political speech he delivered in Kolar, Karnataka in 2019. Legal experts have already pointed out several surprising features about the process, including one-year sentence to the complainant- a long stay on the case which he himself had initiated, a different judge, and a previous one. Sudden acceleration in the case in the month, and unusually quick decisions.
legally untenable decision
All of this aside, however, it is clear that the decision itself is legally untenable. Mr. Gandhi was prosecuted for the following remarks: “How are all these thieves named ‘Modi, Modi, Modi’‘… Nirav Modi, Lalit Modi, Narendra Modi.’ The prosecution was based on a complaint by Bharatiya Janata Party leader Purnesh Modi, who claimed that by virtue of his surname, he, along with all others with the surname “Modi”, had been defamed by Mr. Gandhi’s remarks.
If this sounds like an absurd argument, that’s because it is an absurd argument. To prevent people from being dragged to the courts in frivolous proceedings, the law of defamation is clear that if reference is made to an indefinite “class” of people, a person cannot claim that they are a member of that class, and Therefore, maligned. For example, if I say “all lawyers are thieves”, a lawyer cannot come to court and say they have been defamed, unless they make a specific allegation that directly identifies them. Can show
Editorial | The chilling effect: on defamation, free speech and the Rahul Gandhi case
The “class of all persons in the world who bear the surname Modi” is an equally indefinite and indefinite group. What’s more, Mr. Gandhi’s comment didn’t even indicate that everyone bearing the surname “Modi” was a thief by virtue of that surname. Therefore, how a man was able to prosecute on the claim that he was personally defamed by Mr. Gandhi’s remarks is puzzling; And the fact that the lower court was ready to consider the claim, even more so.
sentence volume
While the fact of punishment is one thing, the quantum of punishment is another. Criminal defamation carries a maximum punishment of two years’ imprisonment. This ‘maximum fine’ is very rarely given, on the understanding that defamation is a pure speech offence, and that, ideally, people should not be imprisoned for long periods on the basis of what they say . There is almost no record of courts awarding a maximum sentence of two years in criminal defamation cases. While sentencing is discretionary, and guidelines for sentencing are rare, the court’s decision to impose the maximum possible sentence is another peculiar feature of the case.
It has not escaped public attention that, in fact, the quantum of punishment was in fact necessary to attract the disqualification of an MP from Parliament. Indeed, soon after the verdict was announced, the Lok Sabha Secretariat ordered Mr. Gandhi’s disqualification; At that time, the judgment had not even been translated, and, as pointed out by legal experts, it was doubtful whether the Lok Sabha Secretariat had obtained a certified copy.
Disqualification is another example of proceeding law. The Constitution authorizes the disqualification of a Member of Parliament, as provided under law. The Representation of the People Act, the relevant law, stipulates that if a person is convicted of any offense and sentenced for a term of less than two years, he shall be entitled to undergo shall be disqualified from the Legislature for A further period of six years after his release.
As of 2013, the Representation of the People Act also states that disqualification shall not take effect for a period of three months from conviction, or if an appeal or revision was brought within that period, if that appeal or revision was disposed of by a . court. The intention behind this provision was clear: disqualification of an elected member of a legislature is a very serious action in a parliamentary democracy founded on the principle of representation. This not only deprives the people of a representative of their choice but also, upon disqualification, leaves them without representation until a by-election is announced and the seat is filled. For this reason – and given that we have a hierarchy of courts for the exact same reason that judges are human, and can make mistakes – the Representation of the People Act put in place the disqualification of an MP until at least Not less than one Appellate Body can inquire into the preliminary order. Punishment and Punishment.
on judicial intervention
However, in 2013, acting on a public interest litigation brought by Lily Thomas, the Supreme Court of India struck down this part of the section as unconstitutional. As lawyer, Paras Nath Singh, in Lily Thomas eloquently argued that reducing this grace period would leave politicians at the mercy of frivolous court decisions, but was cut short by the Supreme Court. The Supreme Court reasoned that convicted politicians could always go to the appellate court for a stay on their sentence. However, this interpretation not only concentrates too much power in the hands of the courts when it comes to political process, it is also naive from the point of view of law: as shown in the case of Mr. Gandhi, when the Lok Sabha Secretariat issued Even before the translation of the judgment is available, the disqualification order, and before the convict’s lawyers have had a possible chance to move for an adjournment, the protection that the court had thought of is nothing more than a fantasy.
Indeed, the Lily Thomas decision is one of many instances where the Supreme Court has intervened in the political process, acting on so-called “public interest litigation petitions”. This has apparently been done with a view to “cleansing” the process and removing criminal elements; However, what has it done to make the law easier? The case of Mr. Gandhi throws light on this.
For these reasons, the conviction and disqualification of Mr. Gandhi marks another nod towards the normalization of the law as a political strategy. This is worrying because an important component of the courts’ legitimacy is their reputation for impartiality among competing political forces. Recent examples from Poland and Hungary have shown how quickly prestige can be lost. It is the job of the judiciary to ensure that what can happen here also does not happen here.
Gautam Bhatia is a lawyer based in Delhi