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 law, politics, and the larger meaning of this event for India’s democracy.
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. 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. This obviously raises suspicions, even though the letter of the law remains unbroken.
The case itself is questionable. As the legal scholar Gautam Bhatia noted in a tweet, “References to a generic class of persons are not actionable unless an individual can show a direct reference to *themselves*”. In this case, Rahul Gandhi did not specifically refer to the plaintiff, Gujarat BJP MLA and former minister Purnesh Modi, in his speech. Such a judgment opens the door to all kinds of new defamation claims against elected representatives, including cases of hate speech targeting entire communities.
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.
By continuously pounding Rahul Gandhi, the BJP seeks to elevate his position as the main figure of the opposition. 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.
Recent critiques of Rahul Gandhi’s speeches abroad aim at presenting him as anti-patriotic. 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. 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.
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. 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.
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 but that he had evoked the Prime Minister’s association with disgraced business figures, some of them sharing the same name. Accusations of cronyism and favouritism have been a weak spot for the Prime minister, amplified by the recent Adani affair. 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.
There is a growing intolerance in India for any form of critique of the Prime minister, and a greater will to use institutions and their instruments, including the law, to target dissenting voices. 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.
Moreover, critiques against the Prime Minister are conflated as attacks against India as a whole, giving a new lease of life to a political trope that was used four decades ago to quash opposition to Indira Gandhi. It is ironic that some of those using these tropes today belong to the same political party that suffered from it in the past. This intolerance for dissent 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.
In many democracies, including India, the right to criticise those who govern is constitutionally guaranteed. 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. What we see here is the gradual instauration of ‘crime de lèse-majesté’, a form of offense that has no place in democratic regimes.
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. The plaintiff belonged to the party of the Prime Minister, the case was tried in a state where judges seldom contradict the BJP. The terms of the sentence are unusual and expedient to the political context.
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. There are two fundamental aspects to the rule of law. The first is that the rules must be applied impersonally, i.e. equality before the law. 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 democratic test here would be for a member of the majority to be subjected to the same treatment.
What makes a political regime democratic is not merely how elections are fought and power wrested. It is also the extent to which it adheres or not to democratic norms while in power. When the tools of democracy and the law are used to gain political advantage, it constitutes an abuse of power.
Gilles Verniers is an Assistant Professor of Political Science and Director, Trivedi Centre for Political Data, Ashoka University.