The Congress MP has been sentenced to two years in jail for making a disparaging remark about Narendra Modi. The length of the sentence ensures that he will lose his seat in Parliament—and will be banned from running for election for the next eight years.
Editor’s note: We will publish part two of our series on evolution/devolution theory next week.
Umm, WTF happened here?
Well, Indian politics is many things but never boring. Here’s how Gandhi ended up in this dire state of affairs.
The M-word diss: During an election rally in Karnataka in 2019, Gandhi said:
I have a question. Why do all thieves have Modi in their names whether it is Nirav Modi, Lalit Modi or Narendra Modi? We don’t know how many more such Modis will come out.
The clip below has his remark (in Hindi) in context of the rest of his speech—which accused the Modi government of being in bed with corrupt businessmen like Nirav Modi etc:
The case: The police complaint was not filed by the BJP—or any of the Modis involved—Narendra, Lalit or Nirav. The offended party is BJP MLA and former Gujarat minister Purnesh Modi. Although the comment was not directed at him, he claimed to have suffered an “irreparable loss to his personal and social reputation due to the fact that he is an MLA and social worker.” Gandhi was put on trial for criminal defamation—which carries a maximum sentence of two years.
Rahul could have limited his speech to Prime Minister Narendra Modi, Nirav Modi, Vijay Mallya, Mehul Choksi and Anil Ambani, but he “intentionally” made a statement that hurt individuals carrying the Modi surname, thereby committing criminal defamation, the court said.
Varma also noted that Gandhi had been previously cautioned by the Supreme Court for his ‘chowkidar chor hai’ remarks—but chose to ignore it:
Rahul Gandhi is a sitting MP and as an MP, when you’re addressing the public, it is a serious issue. Statements of MPs have a very wide impact and this makes his crime more serious.
The sentence: Gandhi was sentenced to two years in jail—which is unusual in a defamation case. These usually involve symbolic punishments—ranging from a day to a month in jail. But the judge made it plain that a “reduced sentence will send a wrong message to the public and the purpose of defamation will not be achieved.”
The killer clause: The length of exactly two years ensured that Gandhi will be immediately disqualified from being a member of Parliament. According to the Representation of the People Act, MPs and MLAs can be disqualified—i.e have to vacate their seat ASAP—for two reasons. One: they are convicted of egregious crimes such as bribery—but this list doesn’t include defamation. Two: they are sentenced to two or more years in prison for any other crime. In either case, they will be disqualified and cannot run for election for six years. That’s the killer clause for Gandhi.
So he’s been disqualified as an MP now?
Not yet. The judge suspended Gandhi’s sentence for 30 days to give him time to appeal the ruling—and apply for bail. He cannot go directly to the High Court or Supreme Court. Gandhi will have to first appeal the decision before the Surat sessions court—and then move the High Court if it doesn’t rule in his favour.
The big ‘but’: It will not be sufficient for a higher court to suspend the sentence while it rules on Gandhi’s appeal—which is usually the case. It will have to either stay or overturn the conviction. FYI: a stay on a conviction is extremely rare—as the Supreme Court emphasised while upholding the disqualification rule:
It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay.
The ticking timer: Section 8(4) of the RPA gave politicians a loophole to avoid disqualification—which would only take effect three months after the date of conviction. The legislator had time to file an appeal—and stay in office until the case was decided. But in 2013, the Supreme Court struck that provision down as “unconstitutional.” It ruled instead that a MP or MLA would be immediately disqualified unless their conviction itself was overturned or stayed—as we noted above.
Counting the days: Legal experts disagree on how much time Gandhi has to save his seat. Some say that since the judge has suspended the two-year sentence, he still has 30 days before the Lok Sabha can move to disqualify him. Others insist that the judge has only suspended the sentence and not the conviction—which means he is eligible to be disqualified asap as per the Supreme Court ruling.
Point to note: The disqualification becomes official when the Lok Sabha Secretariat issues a notification saying that the seat has fallen vacant—and then the Election Commission orders fresh elections for the seat. There is no plan to issue any such notification for now.
Irony alert: Back in 2013, the Congress-led UPA government did its best to nullify the Supreme Court ruling—primarily to save its ally Lalu Yadav who was convicted in a fodder scam case. It tried to push through an ordinance—without a parliamentary vote—to nullify the ruling. An outraged Rahul Gandhi held a press conference to trash the leaders of his own party—calling the ordinance “complete nonsense” that should be “torn and thrown out”:
I really feel it is about time that political parties, mine and all others, stop making these kinds of compromises because if we want to actually fight corruption in this country,whether it is us, the Congress party, or the BJP, we cannot continue making these small compromises.
The Manmohan Singh government immediately withdrew the ordinance.
So things are looking pretty grim for Gandhi, yes?
A number of opposition legislators have been disqualified recently—but the final outcome has been mixed. Samajwadi Party MLA Azam Khan received a three-year sentence for hate speech—and was immediately disqualified.
But Lakshadweep MP Mohammad Faizal was luckier. He too was disqualified after being convicted in an attempted murder case—and the Election Commission had already announced byelections for his seat. But in January, the Kerala High Court suspended his conviction—and Faizal successfully moved the Supreme Court to block the election.
The bottomline: Gandhi’s fate depends on whether the higher courts view his remarks—which are hardly exceptional for a politician—as a crime worthy of a two-year sentence. We really should be talking about our laws on criminal defamation—and how they’ve been used to repress free speech in India—and around the world. Do email us at firstname.lastname@example.org if you want us to dive into that rabbit hole:)
The Telegraph offers a good overview of the ruling. Mint has an excellent guide to the disqualification rules. Indian Express has more on the 2013 ruling. India Today rakes up the ordinance brouhaha as karmic payback for Gandhi. The Hindu talks to experts about the breathing room left for Gandhi.