Normalization of Lawfare
Introduction:
- Combining the words “law” and “war,” lawfare describes the use of the legal system and other legal tools as weapons to subdue, intimidate, or harm an opponent (often, a political opponent).
Recent changes:
- Judiciaries in thriving constitutional democracies are constantly watching for signs that powerful politicians might use lawfare against their rivals and are quick to block such attempts.
- Yet, Rahul Gandhi’s criminal defamation conviction by a Surat court and his rapid removal from the Lok Sabha serve as a disturbing example of the normalisation of lawfare in India. Rahul Gandhi is a former Congress Member of Parliament from Wayanad.
Legally dubious conclusion:
- Leaving all of that aside, it is evident that the decision itself cannot be upheld in a court of law. Because they both share the surname “Modi,” the complainant in this case alleged that Mr. Gandhi’s comment defamed him and all other people with that surname.
- According to the law of defamation, a person cannot claim that they belong to a particular “class” of people and have thus been defamed if references to that group of people are made. As a result, people are shielded from needless legal proceedings.
- Apart from the fact that you were found guilty is the severity of the sentence. Criminal defamation carries a two-year prison sentence as its maximum punishment. This “maximum penalty” is rarely used because defamation is an infringement on people’s freedom of speech, and in theory, people shouldn’t be imprisoned for lengthy periods of time only because of what they said.
- Records show that judges rarely impose the maximum sentence of two years in criminal defamation cases. The court’s decision to impose the toughest punishment is another strange feature of this case, despite the fact that sentencing guidelines are unusual and sentencing is at the judge’s discretion.
- The public is aware that the harshness of the penalty met the criteria for an MP to be expelled from the House of Representatives. In fact, as soon as the decision was made, the Lok Sabha Secretariat gave Mr. Gandhi a disqualification order.
- The disqualification procedure is another example of legal conflict. The Constitution enables the disqualification of a Member of Parliament to the extent that it is permissible by law (MP).
Provisions of the 1951 Representation of the People Act (RPA):
- Any person who is convicted of a crime and receives a term of at least two years is prohibited from serving in the legislature for the period of their sentence as well as for a further six years after their release, according to the law.
- Prior to 2013, the Act also specified that the disqualification would not start until three months had passed from the conviction or until the court had dealt with any appeals or modifications that had been submitted within that time.
- This clause served a very specific purpose: it made it very clear that it was a very serious offence to fire an elected representative in a parliamentary democracy founded on the idea of representation. This not only robs the people of their choice representative, but also renders them without representation upon disqualification until a by-election is convened and the vacant seat is filled.
Concerning judicial interventions:
- Based on a public interest litigation brought by Lily Thomas, India’s Supreme Court (SC) annulled this clause in 2013 and ruled that it was unconstitutional. Politicians would be subject to arbitrary court decisions without this grace period, it was explicitly mentioned in the Lily Thomas case. But, the SC rejected this claim, adding that the politician would always be able to request a stay after being found guilty.
- However, this interpretation is naive from the perspective of lawfare because it not only gives courts more control over the political process but also because, as Mr. Gandhi’s case has shown, the protection the court believed was available is nullified when the Lok Sabha Secretariat issues the disqualification order before even a translation of the judgement was available and before the convicted person’s attorneys have had a practical opportunity to move for a stay.
Conclusion:
- These reasons make Mr. Gandhi’s conviction and disqualification another milestone in the alarming trend of normalising lawfare as a political tactic. It is troubling because a crucial component of the legitimacy of courts is their standing as impartial arbiters of conflicting political forces. Recent examples from Poland and Hungary show how quickly that reputation may be lost. The judge must make sure that what might also happen here doesn’t.
