A disturbing example of the normalisation of lawfare

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Source– The post is based on the article “A disturbing example of the normalisation of lawfare” published in “The Hindu” on 25th  March 2023.

Syllabus: GS3- Polity – Parliament and State legislatures—structure, functioning, conduct of business

Relevance– Issues related to disqualification of representatives

News– Recently, Rahul Gandhi was disqualified from the membership of Lok Sabha after two year imprisonment in defamation case.

What are issues with the court judgement in the defamation case of Rahul Gandhi?

Legal reasoning– The complainant claimed that by virtue of his surname, he and all other people having surname “Modi” had been defamed by Mr. Gandhi’s remark.

The law of defamation is clear that if references are made to an indefinite “class” of people, an individual cannot claim that they are a member of that class. Therefore, they have been defamed.

For example, if I say that “all lawyers are thieves”, a lawyer cannot come to court and say that they have been defamed.

The “class of all persons in the world bearing the surname Modi” is a indefinite and indeterminate group.

Quantum of the sentence– Criminal defamation has a maximum penalty of two years’ imprisonment. This ‘maximum penalty’ is very rarely awarded. Defamation is a pure speech offence.

People should not be imprisoned for lengthy periods purely on the basis of their statement. There are almost no recorded instances of courts awarding the maximum sentence of two

years in a criminal defamation case.

The quantum of sentence was exactly that which was needed to attract an MP’s disqualification from Parliament. Indeed, immediately after the judgement, Mr. Gandhi was disqualified. At that point, the judgement had not even been translated.

Why disqualification proceedings against Rahul Gandhi is not good for India parliamentary democracy?

The disqualification proceedings are another example of delegitimizing the opponent. The Representation of the People Act provides for disqualification.

Disqualifying an elected member of a legislature is an extremely serious action in a parliamentary democracy. It leaves them without representation until a by-election is announced and the seat is filled.

For this reason, the Representation of the People Act kept a parliamentarian’s disqualification in abeyance until at least one appellate body could scrutinise the initial order of conviction.

Why striking down provisions related to the three month period given to the legislature for appeal in the Lily Thomas case affects the political process?

The Supreme Court reasoned that the convicted politician could always move the appellate court for a stay upon their conviction. However, this interpretation concentrates more power in the hands of courts when it comes to the political process.

The Lok Sabha Secretariat issued the disqualification order before the convicted individual’s lawyers moved for a stay. So, the protection the Court thought was available is not sufficient.

The Lily Thomas judgement is just one of many examples where the Supreme Court has intervened in the political process. It has made the delegitimization of opponents easier.

It is concerning because one crucial component of the legitimacy of courts is their reputation for impartiality between contending political forces.

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