The Gandhis Are in the Dock But the Judicial System is Also Under Trial

A few days ago, when the new chief justice of India took office, he sought to assure citizens that the judiciary was vigilant and competent enough to safeguard constitutional values and republican virtues. The National Herald case will now test that assurance.

Congress President Sonia Gandhi with party Vice President Rahul Gandhi, former PM Manmohan Singh and other party leaders after meeting with President Pranab Mukherjee at Rashtrapati Bhavan in New Delhi on Wednesday. Credit: PTI Photo by Vijay Kumar Joshi

Congress President Sonia Gandhi with party Vice President Rahul Gandhi, former PM Manmohan Singh and other party leaders after meeting with President Pranab Mukherjee at Rashtrapati Bhavan in New Delhi on Wednesday. Credit: PTI Photo by Vijay Kumar Joshi

Tomorrow afternoon, Congress president Sonia Gandhi and vice-president Rahul Gandhi are scheduled to make an appearance in a Patiala House court in the matter of the National Herald case.

A BJP leader, Subramanian Swamy, has filed a petition against Sonia Gandhi and six others, which, according to the Hon’ble Mr Justice Sunil Gaur of the Delhi High Court, has put the “probity of a legendary National Political Party … under [the] scanner.” The Gandhis’ pride may get slightly singed as they find themselves having to respect the court summons. But it would do the maa-beta, to borrow Narendra Modi’s colourful phrase, a lot of good to be seen as respectful of judicial institutions and not positioning themselves above the law. Sonia Gandhi has to repair the damage her parliamentary managers have inflicted on her party and on her own reputation with their disruption of parliament by way of a protest against the so-called “politics of vendetta.”

Many knowledgeable Congressmen with professional competence in matters of law have argued, with considerable vigour and force, that in the National Herald case the judicial process is being abused for settling a few political scores. The Congress party is perfectly entitled to use the summons in the case to kick up a shindy in order to energise its cadres outside parliament. Of course, without giving the impression of wanting to overwhelm the judge. Whatever be the merit in the Congress argument of a “politics of vendetta” at work, this will not be the first time — nor would it be the last — that a courtroom becomes the arena for rearranging political equations and forces.

It has been suggested that this regrettable tendency began with the Allahabad High Court 1975 ruling in the Indira Gandhi vs Raj Narain case. A popularly elected prime minister was sought to be unseated for what had been called a ‘traffic-ticket’ violation. No critic of Indira Gandhi has ever seriously suggested that her campaign manager’s minor infringements – though, bad in law — made a substantive difference to the outcome in the Rae Bareli constituency. What her political rivals could not accomplish in the electoral arena, they managed to achieve in a courtroom. The judgment had long-term consequential ramifications. The polity lost — and is yet to recover — its basic and indispensable equilibrium, a proposition that is at best an elusive concept, but very much identifiable by an unmistakable sense of fairness.

Over the years, this itch to use a judicial forum to ground a political rival has got entrenched as an inspired infirmity. Therefore, the Gandhis’ momentary discomfort is only a minor footnote in the judiciary’s larger struggle to extricate itself from the politician’s tricks and traps and to rediscover its aura of institutional distance and detachment.

It is politically correct to assert that the judiciary is above the political fray, just as it is very satisfying to insist that no one is above the law. This is one of our cherished democratic conceits. Delhi may choke on bad, polluted air, but it thrives on the rank odour of gossip, insinuations, innuendoes and conspiracies. The judges also breathe the same air. They do not live in a monastery.

Suddenly, a high court judge has decided to read an “expanded meaning of the law” and has expounded that “in a democratic set-up, how a political party of national stature acts is everybody’s concern.” Hence, a prima facie case of wrongdoing is evident and needs to be settled as per the established procedure. The magisterial exactness of that procedure demands the Gandhis’ appearance in the Patiala House court. And, appear they must — that too without much fanfare.

The BJP leadership, though enamoured of its own considerable cleverness, will discover that Swamy is a mixed blessing. Sonia Gandhi herself learnt that painful lesson when she allowed him to broker a truce with Jayalalithaa over a famous tea party in 1999. The BJP’s ‘we-have-nothing-to-do-with-Swamy’s-petition’ stance is strictly for the birds.

A larger war

It is hard to overstate the fact that perhaps an old battle has been resumed with fierce determination. There is an entrenched group of intelligent, sharp, determined men and women who vindictively feel that time has come to show the Nehru-Gandhis their place. The same cast of characters had almost succeeded in frog-marching Sonia Gandhi to jail in 2003, but that fair man — Atal Bihari Vajpayee — happened to be the prime minister and he put his foot down against gross misuse of the government’s coercive instruments. That interrupted battle will now be resumed at Patiala House.

Then there is a larger war: the Sangh parivar’s fifty years old, interminable standoff with the Nehrus and the Congress party. The Sangh parivar is only too painfully aware that Jawaharlal Nehru had single-handedly mobilised Indian public opinion against a Hindu right-wing takeover soon after independence. But having played no role whatsoever in the national struggle, the Sangh was no match. Now its various affiliated fronts are trying to earn respectability for themselves by wanting to de-legitimise the Congress and the Nehru-Gandhis. Indeed, the Sangh parivar has a grudge against Atal Bihari Vajpayee: he could not finish off the Congress. He was deemed to be too mild, too gentlemanly and on his watch, he allowed Sonia Gandhi to lead the Congress back to power. This resentment against Vajpayee has since coloured the parivar’s management of the BJP’s leadership question.

Let us recall the manoeuvring within the BJP in 2013. The outcome of that manoeuvring hinged precisely on the consideration as to which prime ministerial candidate would go the whole hog after the Gandhis. Post-May 2014, there is a new determination to fix the Gandhis.

Admittedly, the National Herald case has broken the post-Bihar momentum.The case has made the Gandhis look less pretty with the middle classes, and has raised the presumed cost for others for doing political business with the Congress of the Gandhis. The Congress president has been brought down from ordination to ordinariness. This in itself is not necessarily an unwelcome denouement.

More than the Gandhis, the Indian judicial system is on trial. All said and done, the Gandhis head a legitimate political institution, with over a hundred years of political legacy. At stake is India’s reputation as a stable political order, sustained by an institutional equilibrium. In particular, that much sought-after customer — the foreign investor — would want to reassure himself that India has not become a banana republic, with a finicky, malleable judiciary that can be easily involved or intimidated by the politician.

Harish Khare is Editor-in-Chief of The Tribune

Courtesy: The Tribune


    (1) What is happening in the National Herald case is that legal
    battle has been partly converted into a political battle, and who will benefit
    from all the drama is yet unclear. But this National Herald legal &
    political battle will be fought in a very professional manner with support of
    Congressmen loyal to Gandhi family and of course with assistance of eminent
    lawyers. (2) Incidentally, as our judicial system has not been reformed there
    are lacs of pending cases in our Courts. If a legal case like this one comes up for first hearing say in December,
    2015 in a lower Court we can expect final decision (to be given by our apex
    court, the Supreme Court) , in 2025 or
    even later, unless the trial Court and higher level Courts decide to expedite
    hearings in the case. This is the reality today. Unless executive steps are
    taken and until legal reforms are implemented the scenario will not

  • ashok759

    I don’t think it would be fair to judge India’s judiciary on the touchstone of how the Gandhis fare in court in the National Herald case. The judge would place a strip of black cloth before his eyes and see the facts and the law.

  • Akash Satyawali

    Mr. Harish Khare writes about how the Judiciary is too under trial. I take exception to this statement and here is the reason why.

    Being a student of law I know the Honorable Judges can go wrong, they do on so many occasions, which however, does not mean that the decisions/ orders are laced with an inherently improper motive or any consideration that might not be legal or for that matter moral.

    Mr. Khare writes, “Whatever be the merit in the Congress argument of a “politics of vendetta” at work, this will not be the first time — nor would it be the last — that a courtroom becomes the arena for rearranging political equations and forces.

    It has been suggested that this regrettable tendency began with the Allahabad High Court 1975 ruling in the Indira Gandhi vs. Raj Narain case. A popularly elected prime minister was sought to be unseated for what had been called a ‘traffic-ticket’ violation.”

    Mr. Khare suggests the Courtroom is being used to rearrange political equations. Assuming it was the case; I would though think that if it were so, it could have been remedied, after all, the Congress has had as its members some of the best and most sought after lawyers in the country.

    Secondly, Mrs. Gandhi might have lost because of ‘traffic ticket’ violations, but what needs to be noted is, a traffic ticket violation is a violation. It is illegal. It doesn’t matter that the violation was made by the Prime Minister or someone else, the violator or the person who had authorized that violation needs to be booked, and I would assume that is what transpired.

    Mr. Khare writes, “What her political rivals could not accomplish in the electoral arena, they managed to achieve in a
    courtroom.” Here again, it is to be noted that what ‘they’ achieved in the Courtroom is legal; it is allowed. They ‘achieved’ a violator from getting off; it is not an offense, not even a moral one. That however doesn’t stop Mr. Khare from putting the Court in dock.

    In the last paragraph (I could go on quoting but then it would be too lengthy), Mr. Khare writes how the Judiciary is in dock, how INC is a legitimate organization, how India is not a banana republic. What I comprehend from this paragraph is that the Honorable Court must somehow be wrong in proceeding against the Gandhis. I could be wrong in my understanding but that the whole piece in replete with examples which are meant to show how the Judiciary might have been used previously to bring the Congress to its knees makes me believe that I am not far too off with the idea that Mr. Khare wanted to convey.

    Why I think Mr. Khare is wrong

    As aforementioned, the Judges could go wrong; it doesn’t mean one imputes motives to them in absence of clear and cogent evidence of impropriety. The standard here has been set high because it is a prerequisite to maintaining an institution which many believe has served us better than most other. This is necessary because what an article/ op-ed like this does is lead to a deficit in
    trust. This is not to say Mr. Khare shouldn’t be questioning what he thinks is wrong, this is to say that the questions should not be based on rhetoric, it should have some concrete backing rather than how Mrs. Gandhi was booked for a ‘traffic ticket’ violation, which is perfectly legal.

    The other day I read a series of tweets by a lawyer (I think it was Mr. Dushyant Arora) on how the order of the Honorable Delhi High Court was replete with infirmities, the lawyer there provided reasons and that is how it should be.

    Mr. Khare puts the institution in dock because the Gandhis have been summoned and since they are part of a political organization the summons must be vitiated by an attempt to teach them a lesson. What he fails to mention is that it is not illegal (unless so held by a higher Court), it is not immoral, it is allowed.

    If the Gandhis are innocent, they will find justice (they, unlike many others can afford the best lawyers); that they have been summoned is part of the process, a lot of people go through it, I don’t see how it makes a difference.

    The judicial system is not on trial here, and to use a popular platform to put across the idea that it is, is immoral. The reason this is so is because these very similar arguments as made by Mr. Khare, which have no basis in law but are conjecture pure and simple, will be put to use by any other party or individual when they find themselves at crossroads with the judiciary. They too will
    impute motives, and gradually the trust deficit will grow. This is not what we need; this is not what we can afford.

  • Srinivasan Krishna Murthy

    Much as admire the erudition and cerebral arguments of Mr Harish Khare, I have to respectfully disagree with him on his
    latest piece.Law Courts have been akaras to fight political battles by proxy for as long as I can remember.. The case against Laloo Yadav, Jayalalitha,A R Antulay,Jain Hawala,Lakhubhai Pathah case just to name a few were all political in nature. The idea was to fix your opponents by using the law because you were unable to dent them—at least in most cases—through the ballot box.

    It’s a fair stratagem and it isn’t that the law is being misused. At the heart of all these cases was the hard fact that there
    were acts of omission and commission, corruption, skullduggery that unfortunately the ballot box finds hard to eliminate. So how do you make people pay for their sins? I guess one way out is taking them to courts.

    Most of us feel terrible that an 18 year old delinquent is being let off the hook and will go scot free in-spite of participating in a terrible act of rape called the Nirbhaya case.Like it or not, the fact is that this boy is being let off on a technicality because that is what the law provides for. By the same yardstick,Justice Jagmohan Sinha went strictly by the book and found that as
    much as it was a technicality it was a deviation of the laid down code of conduct.Therefore, was he wrong in his judgement ? Not all all. On the contrary,Mrs Gandhi opened herself to trouble for not heeding the rule book.

    When it comes to the case of National Herald we need to ask ourselves a few simple questions. Was the law violated ? the
    unequivocal answer is : yes. Would any citizen of India be allowed to get away such a trespass ? unlikely.The simple way out is for the Gandhi’s to reverse the whole process, say it was a mistake and get along with the business of
    running the Congress Party.

    There is no point saying that the BJP is setting up Subramanian Swamy to tear into the Congress. Every generation will produce
    its own Ramdas Nayak( the man who went after Antulay).The point is you opened your flanks for attack and when it comes to the crunch you run for cover and start calling it vendetta. It would be unfair to tell the courts not to succumbto pressure rather than applauding them for doing what is right by the law. Rather they should be complimented for sticking by the rulebook after the disquiet of the last 15 months when scores of earlier rulings have been gently overturned leading to thadipars strutting about in Akbar Road as Gods gift to mankind.

  • Naved Yar Khan

    Summon means cognizance of the offence has been taken.This summoning was challenged in High Court,which appears to have upheld the trial Court’s order.High Court’s order could have been challenged in the Supreme Court but that has not been done.I am perplexed that esteemed lawyers of the Congress party have acquiesced with the High Court’s order.

  • rohit g chandavarker

    The aura that is sought to be attached to the Congress is misplaced. A careful neutral analysis of the present Congress party would reveal that it bears no resemblance or similarity to the Congress of Independence, regardless of what one is made to believe.
    There is a subtle attempt being made to pressure the judiciary to act in a manner favourable to the Gandhis, which is deplorable.
    One would like to remind here that political vendetta has been developed into an art by the Congress over the 50 odd years they were in power. It’s strange to hear Congress & its apologists crying wolf when this tool is allegedly being used against them.
    There has been veiled criticism of the judges & aspersions have been cast on the judiciary. Hence one gets the impression that these apologists, including within the media, would go to any lengths to shield their benefactors. Why then , should the media object to the phrase, presstitutes?
    The judiciary would perforce discharge their duties diligently but one shudders to think what would be their plight were they to pronounce a guilty verdict, given the deep & unholy alliance between media & Congress’ first family.
    Hence there is a converted & sustained campaign in media by these apologists to influence public & judiciary.
    One is, therefore, struck with awe & fear at the level of infiltration & indoctrination of all vitals of Indian state, particularly the media.

  • Sarala Kurup Jagan

    Madam is taking a leaf out of her MIL’s life to revive her lost fortunes.However the times are different .MIL had Dhirendra Brahmachari advice …. The times are bad …. Congress should not provoke ….. This is a battle it is going to regret.The zodiac signs are different too. Atal was a paid stooge, a rubber stamp with no fight ….Nehru needed an opponent who would not upset his applecart…and atal fitted the bill… Unfortunately times have changed ….this time law just might give delivrance to the people of India…. Swamy does not fight losing battles …. he has a sense of history … he wants history to remember him as the David who hit Goliath with a stone … Sometimes Biblical allusions carry water.