Do Voters Have a Right to Protection Against Politicians' False Claims?

False political claims by both Boris Johnson in the UK and Rahul Gandhi in India have invited legal action.

The former British foreign secretary, and the frontrunner to succeed Theresa May as Britain’s prime minister, Boris Johnson may have nothing in common with India’s Congress president Rahul Gandhi. While Johnson is full of hope that the Conservative Party will choose him to succeed May, who formally resigned on Friday, Gandhi finds himself in the midst of a conundrum – over whether to continue leading his party after its crushing defeat in the recent general elections.

There is, however, one thing that they have shared – allegations from their political adversaries. Both have been dragged to court for the alleged offence of lying. While Johnson was pilloried for making inaccurate statements in public, Gandhi had to express regret to the Supreme Court for an inaccurate attribution to it.

When the news that the Supreme Court had dismissed the Centre’s concerns over its hearing of the review petitions in the Rafale case was conveyed to Gandhi, he reportedly remarked that the apex court too agreed that ‘Chowkidar Chor hai’ – a polemical slogan he used against the prime minister. The Supreme Court, after hearing MP Meenakshi Lekhi, who sought initiation of contempt procedures against Gandhi for making this remark, has reserved its order.

Boris Johnson’s lies

Marcus Ball, a Remainer brought a private criminal prosecution against Johnson for his comments in the run-up to the referendum three years ago that the UK sends 350 million pounds a week to the EU, funds which would be better spent at home. The figure, many seem to agree, was palpably false.

Ball alleged that Johnson was deliberately acting in a misleading way while using the “platforms and opportunities offered to him by virtue of his public office”. In the weeks before the 2017 general election in the UK, Johnson was the mayor of London and then a member of parliament.

Last week, a district judge in the UK decided that summons could be issued requiring Johnson to attend Westminster Magistrates’ Court to answer to the allegation. On Friday, however, Justice Supperstone and Lady Justice Rafferty of the High Court of England and Wales quashed the criminal summons against Johnson, after agreeing with his counsel that the case was the “culmination of a politically driven process”. Johnson’s counsel argued that he denied acting improperly or dishonestly, and therefore, his vexatious prosecution would set a troubling precedent.

“There has never been a case in this country nor, so far as we are aware, in any democracy, in which an attempt has been made to prosecute any individual, whether candidate, office holder or other, for false statements about public facts made in and for the purpose of political campaigning,” Johnson’s barrister was cited as having submitted in the written arguments to the court.

“Such prosecution is wholly alien to the common law democracies, where no such law has been passed and such conduct has never been considered to be criminal”, Johnson’s counsel was quoted as having contended before the court. Johnson’s prosecution was alleged to be a political stunt and represented “an attempt, for the first time in English legal history, to employ the criminal law to regulate the content and quality of political debate”. The district judge, Margot Coleman justified her summons because they could only be tested in court when Johnson appeared.

Interestingly, Johnson has also come under criticism for disseminating fake news through one of his columns in Daily Telegraph in January. He wrote that a no-deal Brexit was the option “by some margin preferred by the British public”. A reader complained to the Independent Press Standards Organisation (IPSO), a regulator, that Johnson’s claim was not supported by any poll.

IPSO ordered a correction to Johnson’s article, considering his claim as a “significant inaccuracy,” and dismissed Telegraph’s defence that Johnson’s column “was clearly comically polemical, and could not be reasonably read as a serious, empirical, in-depth analysis of hard factual matters”. IPSO’s order has triggered an interesting debate on whether voters are entitled to protection against the falsehood enjoyed by shareholders, consumers, readers of advertising or politicians’ statements in newspapers.

Michael Skapinker recoils at the idea of politicians being pursued through the criminal courts for what they say in the heat of a campaign. “It offends against the idea of an open democratic contest, in which statements that cannot survive wither under their opponents’ rebuttals,” he says in his column.

Rahul Gandhi’s campaign

While the High Court of England and Wales is yet to give its reasoned judgment on the misconduct allegations against Johnson, initial reports say that the judges were persuaded by the argument of Adrian Darbishire QC: “It was just a political claim open to, and available for, contradiction and debate, and it was, and is, for the good sense of the electorate to discount it if they choose so to do”. More importantly, the high court’s judgment cannot be appealed in the UK Supreme Court – unless the former permits Ball to do so on a point of law, which is considered unlikely.

Turning to Gandhi’s inaccurate attribution to the Supreme Court, it makes sense to ask whether the court was justified in hearing the contempt petition against him, and almost insistent on his apology, in lieu of punishment for contempt of court. In retrospect, the Indian electorate did not just discount his inaccurate attribution to the court, but his entire campaign rhetoric centred around ‘Chowkidar Chor hai’ against the prime minister. They considered it just a political claim, which was open to debate, and not an offence to be determined by the Supreme Court.

However, it may be relevant to ask whether the Indian media have an obligation to report Gandhi’s remark as it was, or qualify it by reporting that the apex court itself had not used the similar expression, as used by him while deciding to hear the Rafale review petitions. Apparently, the voters’ right to protection against falsehood by politicians, if taken seriously, might have to be invoked against the prime minister himself, as he was caught lying during the recent campaign on several occasions.

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