Political Diary

New Delhi, 28 March 2023

Defamation = Disqualification

MAN. OUR NETAS ARE TOUCHY!

By Poonam I Kaushish

 It’s the season of the defamation whereby any innuendo equals disqualification and becomes a ticket to jail. Perhaps little did Congress’s Rahul’s know his comment of “Why do all thieves have Modi as the common surname,” at a poll rally in Karnataka 2019 would land him in legal trouble 2023 when ex-Gujarat Minister Purnesh Modi filed a case in Surat court that his comments had defamed entire Modi community.

True, the Court suspended Rahul’s two years sentence but within 24 hours Lok Sabha disqualified Rahul under RPA’s Section 8(3) even though Court gave him 30 days to appeal. Basing its decision on a 2013 Supreme Court judgment which avers stay on conviction and not  sentence was the only way that could protect Rahul’s MPship.

Accordingly, Rahul stands disqualified from Parliament for his jail term period and an additional 6 years, unless a higher court suspends his conviction. Ironically, the 2013 ordinance which Rahul  tore up would have allowed a convicted MP/MLA to continue in office till his appeal was disposed of,  has returned to haunt him.

Rahul, on his part is defiant and seems to follow the three Cs principle: Conviction, Courage and Commitment. Working on the premise of ‘Converting’ the defamation challenge to an opportunity of the ahead, making it the fourth C. The political rainbow is his conviction has bandied the Opposition together as its leaders could be next.

Questionably, is India heading towards an era of political intolerance and criminal defamation? Is the polity afraid of clash of ideas in public life? Why are politicians’ discourses becoming more and more venomous and toxic? Is Government, Centre or State crushing free expression, suppressing dissent? Underscoring the narrow-minded climate of political discourse we live in.

Either way, there are two important takeaways from the Surat court’s conviction of Rahul --- and neither is about whether he will be disqualified as MP, even though a 2013 Supreme Court judgment is explicit on the outcome. It held any MP, MLA, MLC found guilty of crime and sentenced to more than two years would lose their House membership.

One, whether the Court ruling will reopen discussion on one of the most controversial penal provisions of the Indian Penal Code: Section 499 and 500 which spell out a “simple imprisonment for a term which may extend to a maximum of two years and a fine or both for spoken, read, gestured words with the intention of harming a person’s reputation is to be considered defamation and attract legal punishment.”

Despite experts arguing that it is disproportionate to harm caused and prone to misuse due to the vague language used, specially in a milieu of competitive democracy during the heat and dust of frenzied electioneering where leaders of every colour, caste and creed try to whip up voters sentiments via speeches based on lies, deceit, toxicity, slander, toxicity. Elections over these are forgotten and dumped in political raddi. 

Till date there was an informal compact whereby political speeches made in the heat of campaigning were largely exempt from domain of criminal defamation cases, not by law but practice. It remains to be seen whether Rahul’s conviction and subsequent disqualification shatters this convention and opens doors for Parties, leaders and groups to file defamation charges against political adversaries and the route taken by judiciary to decide these cases. 

Specially as 6 high voltage Assembly elections are scheduled this year prior to general polls in 2024. Raising a moot point: Will poll campaigns now be peppered with criminal defamation litigation? Will it prompt netas to be more restrained? Will courts evolve a new doctrine in adjudicating such complaints? Given the vagueness of the criminal defamation statute.

The law completely fails to clarify what harm to a person’s reputation means. Its explanation of harm as lowering ‘moral or intellectual character’ or lowering the ‘credit of that person’ in the ‘estimation of others’ only convolutes the provision further.

It is difficult to sustain the argument that all those with the surname, and not merely the three individuals including Prime Minister Modi who were referred to, can be aggrieved persons. Also, it is not clear if the complainant had shown that he was aggrieved by the alleged slur either personally or as a member of the ‘Modi’ group.

Two, is the impact this move will have as it generates a debate on the criminal act of defamation and whether such a draconian law is required at all when civil remedies for defamation exist. But it has resisted legal challenges twice. The offence arises from the interplay of Article 19 which allows free speech with reasonable restrictions and Article 21 which assures the right to live with dignity.

However, notwithstanding reservations the British era provisions remain on books due to a Supreme Court 2016 ruling rejecting pleas from politicians and intellectuals that it was an outdated idea that undermined Article 19.(1) (a) which grants a citizen the right to freedom of expression.  Instead, it held that a person’s right to reputation was part of a person’s fundamental right to life.

The provision is also peculiar because it essentially uses criminal law to prosecute a private wrong committed by an individual against another and not society at large. Consequently, only a person or group can bring a charge of criminal defamation against someone, not the State. The reason why many countries have dispensed with the law.

It is for these reasons that the Apex Court asked magistrates to be careful while adjudicating cases and ensure that the allegedly defamatory statement is not generic or based on subjective understanding of a remark and contains specific ingredients that make up a defamation charge. It is questionable whether attacking an indeterminate set of people with a general remark will amount to defamation, and even if it did, whether it is so grave as to warrant the maximum sentence.

It remains to be seen if the nautanki on the political firmament catalyses another challenge to this statute. Will it open more such suits? Recall, Tamil Nadu’s AIADMK Jayalalitha used criminal defamation as a tool between 2002-2006 filing over 100 criminal defamation cases against the media.  

Clearly, there is no place for criminal defamation in a modern world. A democracy should not treat defamation as a criminal offence at all. It is a legacy of an era in which questioning authority was considered a grave crime. In contemporary times, criminal defamation acts as a tool to suppress criticism of public servants and corporate misdeeds.

In the ultimate, when we do a cost-benefit analysis, we need to answer a simple question: Is this toxicity really worth the price the country will pay? Who will bear the cross? Our leaders must dial down on coarse political speeches and desist from using narrow-mindedness and prejudices as pedestals to stand on to be seen. The aim should be to raise the bar on public discourse, not lower it. Parliament and Courts have plenty to do. They need to pay heed before it’s too late. ---- INFA

(Copyright, India News and Feature Alliance)

Round The States

New Delhi, 25 March 2024

Gujarat Verdict On Rahul

‘OPPOSITION JODO YATRA’ BEGINS?

By Insaf

A Surat court, in Gujarat has thrown the Congress into a tizzy. Opposition leader and its former President Rahul Gandhi has been disqualified as an Lok Sabha MP on Friday, following the court of Chief Judicial Magistrate HH Varma, 24 hours earlier convicted him in a 2019 criminal defamation case for his remark, “How come all thieves have Modi as the common surname?”at an election rally in Karnataka. Found guilty under IPC sections 499 and 500, the court, however, granted him bail and suspended the sentence of two years jail for 30 days to allow him to appeal in a higher court. If a higher court does not stay his conviction and sentence, Rahul would not be able to contest elections for eight years! Gandhi, the court had said 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, and thereby committed criminal defamation. It was hearing a complaint filed by BJP MLA Purnesh Modi. Following the verdict, BJP functionaries from ‘Teli’ (oil-pressing) caste and leaders of the community who largely have the surname of ‘Modi’ demanded an apology from Rahul and warned of an agitation.

However, Rahul has refused to apologise. He tweeted: “My religion is based on truth and non-violence. Truth is my God, non-violence the means to get it -- Mahatma Gandhi.” The Congress will be filing an appeal as well as fighting back politically, as such cases it claimed “were an outcome of the BJP’s malafide intent and malice to crush any political dissent in India.”The silver siling is that Opposition leaders of DMK, TMC, AAP, NCP, JMM, RJD,among others are on the same page. Statements of support are pouring in: “The action against Gandhi is an occasion for fight, not fright and all parties opposed to BJP must come together without delay”; “In PM Modi's New India, opposition leaders have become prime target. While BJP leaders with criminal antecedents are inducted into the Cabinet, Opposition leaders are disqualified for their speeches”; “Today, we have witnessed a new low for our constitutional democracy”; “it’s murder of democracy and this is the beginning of the end of dictatorship”; “It has become a crime to call a thief a thief, while those looting the country are out”; “The sentence against Rahulwas announced yesterday and within a day he is now disqualified from Lok Sabha! Nothing short of a surgical strike on democracy! Time for the entire opposition to rally against this unbridled emergency!” The saffron party said that it was a legal issue and not that of the BJP! Anyone getting fooled? The big question is what course this defamation and disqualification case take. For starters, should one read signs of the Rahul Gandhi case boomeranging into a long drawn “Opposition jodo yatra”?

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BJP New State Chiefs

Four States have new BJP Presidents ahead of General elections 2024. The change in guard on Thursday last is well-thought out though caught many by surprise. In Rajasthan, the party has sought to halt infighting, by replacing Satish Punia with two-term Lok Sabha member CP Joshi, also a Brahmin face. Punia didn’t have the best of relations with former Chief Minister Vasundhara Raje, who incidentally continues to be the party’s most formidable leader, though Delhi had reservations. Indications are equations are improving. Having broken ties with JD(U) in Bihar, the BJP has replaced Sanjay Jaiswal with MLC Samrat Chaudhary, a Kurmi leader, to maximise its outreach among OBC communities. In Odisha, former minister and MP, Manmohan Samal, takes over. He’s better-known faces, more aggressive with his politics bearing a distinct Hindutva mark. In Delhi, working State President Virender Sachdeva takes full-time charge even though he’s low-key, his organisational skills have ‘infused a sense of cohesion in the unit, pulled in different directions by local heavyweights.’ Will the new team boost BJP’s organisational machinery and consolidate support base, time will tell.

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Punjab’s Hot Chase

Punjab police’ hot chase to nab pro-Khalistan preacher Amritpal Singh shows cracks in AAP governance. Clearly,it’s a blunder with authorities turning a blind eye to warning signals—since February 23, when Singh stormed a police station in Ajnala. Invoking NSA against him, after his escape on March 18, when a belated go-ahead was given to arrest him, is waking up too late. In the backdrop that the stringent act is merrily invoked by governments against journalists and human rights’ activists at the drop of a hat. While the Punjab & Haryana High Court has rapped the State police over “intelligence failure” after a petition was filed for his ‘release’ from alleged police custody, there’s also an unfortunate disconnect in New Delhi. Union Home Ministry perhaps should have prodded the State more, as the Ajnala incident showed undercurrents of Punjab during 80s and 1990s? Instead of working in tandem, the AAP and BJP leadership then traded charges. Now an alert has been sent to all States as chief of ‘Waris Panjab De'gives the slip from a high-end Mercedes to switching cars to a mobike and changing his appearance. Will the hunt be successful?

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Delhi’s Poster War

What’s the big deal in putting up posters? A lot would say AAP in Delhi. The police arrested six persons including two owners of a printing press and registered 49 FIRs on Wednesday last for putting up posters reading ‘Modi Hatao, Desh Bachao’ (Remove Modi, Save the Nation) across the capital’s walls and electricity poles on Sunday. The FIRs were under Delhi Prevention of Defacement of Property Act and Press and Registration of Books Act. So far ‘20,000 of 50,000 posters’ ordered were seized. A livid Chief Minister Arvind Kejriwal reacted: “They registered an FIR over a poster! Why is Modi ji so scared! This is a normal poster, and anybody can put it up in a democracy. Such a scared and insecure PM. I think he wakes up every morning thinking who he can put in jail.” Plus, he wondered: ‘Is the PM’s health ok?...he’s suffering from a sleeping disorder, and should consult a good doctor…Tell PM to sleep because if he is sleeping for 3 hours it’s a problem.”

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No Online Gambling

No online gambling! On Thursday last, The Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Ordinance, 2022 was unanimously passed by the Assembly, despite objections from Governor Ravi. The bill was first passed on 19 October 2022, but was returned by Ravi on March 6 questioning the Assembly’s competence to frame such a law. A determined Chief Minister Stalin appealed to the House saying: “This is a bill passed not just with the mind, but also our hearts.” He referred to 41 people having committed suicide after losing huge money in gambling. Seen as a rebuff to Governor, Stalin said: “government received 10,785 emails from public of which only 27 were against the ban; it formulated suggestions on a report by a team of retired Justice K Chandru; State has every right to “streamline, regulate and protect people” living within its jurisdiction; cited Union Minister Anurag Thakur’s written response in Parliament underlining state’s powers to legislate on betting/gambling; and summed up with “this government can’t function without a conscience.” Best bet alright, but Stalin must ensure the ban is implemented. ---INFA

(Copyright, India News & Feature Alliance)

Round The World

New Delhi, 31 March 2023

Dare & Democracy

SOUTH BLOCK TO RECONCILE

By Prof. D. K. Giri

(Secretary General, Association for Democratic Socialism)

A diplomat from a middle-sized European country ruefully said to me, “how do we raise human rights issues with your government? It is a big country and a huge market. We are not talking to some small country in Africa or Latin America.” That is a dilemma posed by India to other countries, especially democracies.The other one was manifested in the practice of realpolitik by a rich and progressive European country.

When the civil societies in that particular country raised the issue of human rights in India, their government cautioned and counselled that in the national interest of the country, trade and commerce had to be privileged over human rights. Even Indian Foreign Minister S Jaishankar says, “Westerners talk of rule-based international order but sacrifice it at the altar of their respective national interests. We Indians have to run our industries and feed our hungry, many of them below the poverty line.So, we have to buy oil from Russia as others do.”

Such tension between idealism and pragmatism is felt across the world. Rich industrialised countries believed in maintaining their political and economic power disregarding democratic principles abroad. That approach has been evident in the Western countries’ massive trade and commerce with China in the face of ruthless suppression of human rights including rolling over the tanks at Tiananmen over students protesting for democracy.

Many a country in the world, including India, is diffidently conscious of the dichotomy between growth and human rights. That is why, perhaps, the Indian government appears indifferent to allegations to violations of human rights. At the same time, New Delhi believes that Western perception of human rights does not converge with that of Global South, and Western countries could be guilty of maintaining double standards. At any rate, why is New Delhi using both dare and diplomacy in its foreign policy? Although, evidently New Delhi has not arrived yet as a world power, it believes and is perceived to be at the threshold of the top.

Secondly, New Delhi’s current foreign policy is driven by a muscular nationalism, a ‘dare you’ approach. While it is certainly good for a self-confident and an aspiring power, India should adhere to realism as well as norm-setting. On the first principle, realism, is a matter of perception. The leadership gurus like David Schwartz says, ‘you are what you think you are’. More power to South Block and India’s economy!

Also, there are credible research and prognoses that India will be the number one or two economy in the world and will overtake China. A short analysis by the noted American geopolitical expert, Peter Zeilan, makes such prediction. China’s economy is a ‘bubble’ created by the United States after the summit between Nixon and Mao to isolate Soviet Union and secondly, as a part of American globalisation push during the Cold War era. Whenever America wants to pull the rug, Chinese economy is bound to collapse.

On the other hand, India has not been internationalised. It did not grow much, nor did it suffer like others. It does not get growth, but it also does not get instability. India is slowly transitioning, lot slower than those in her peer group, yet the growth is steady. In a few decades it will be the largest population in the world and will remain so for about 50 years. It will not suffer the demographic crunch like the Europeans or even Chinese. India has problems but they also find solutions.

More important, India is closer to what they need. With its growing friendship with Australia, supply of food and minerals should not be a problem. India is the first stop off the Persian Gulf, therefore, despite the usual perceptions of inefficiency, women’s issues, corruption, Pakistan, India has much less to worry about than China. India can come with solutions from time to time and solve its problems, but China is inevitably close to the end.

Such pontification is giving India the confidence and confirming the refrain that India will grow despite its leadership. So, India could dare!

The other part of our concern which is intrinsic to India’s soil is democracy and everything that goes with it – human rights, gender equality, pluralism, liberty, choice, justice and so on. Note that democracy for various evident reasons, has become a universal aspiration. India is a home of democracy as Prime Minister Modi suggested on Wednesday, 29 March 2023, to a Summit for Democracy, co-hosted by USA, Costa Rica, the Netherlands, South Korea and Zambia. He said, “the idea of elected leaders was a common feature in ancient India, long before the rest of the world.”

Furthermore, Modi had claimed before that India preceded the Greek city-state in 6 Century BC that gave rise to Damos and Kratos (peoples rule). He cited the statecraft of Mahabharata, practiced over 5000 years ago where the citizens were enjoined the responsibility of “choosing their leaders as their first duty; and the Vedas which dated much earlier than the Greek principles spoke of political power being exercised by broad-based consultative bodies” (modern day cabinets, legislatures, etc.). He added that climate change and Covid vaccine were also people-driven.

So far so good. But sadly, what is experienced on the ground is far from desirable. Like others, we tend to follow a double standard by undermining those we claim to be our heritage. Our democratic institutions are undermined. No democracy can function effectively and healthily without robust institutions and in some cases autonomous ones. One of the architects of European Union, the French Foreign Minister, Robert Schumann, said, ‘great (wo)men are known by the institutions they leave behind.’ Second, human rights are flouted with impunity.

The attacks on minorities, vandalization of churches and other religious institutions, targeting the Muslims, including the inhuman mob lynching, are absolutely out of order. Going after the journalists critical of viewpoints or actions are out of democratic line. If BBC brings out a documentary that could be engaged and proved to be malicious but income tax raids on their offices is not the right reaction. No doubt, IT raids should be conducted automatically. The timing, cause and effect sequence in the BBC saga shows us as not a mature democracy. If Hindenburg brings out ‘discrepancy or unethicality’ in a business house that must be addressed, not trashed.

All in all, admittedly, the present dare is a sign of a country in resurgence. But on democracy, the ‘glorious past’ and the ‘present predicament’ do not go together. Will the honorable Prime Minister address these distortions? -— INFA

(Copyright, India News & Feature Alliance)

Round The World

New Delhi, 24 March 2023

Kishida Dashes To Delhi

DISCERNING HIS PRIORITIES

By Dr. D.K. Giri

(Prof. International Relations, JIMMC)

The Japanese Prime Minister Fumio Kishida dashed to Delhi for two days, last Monday and Tuesday, precisely for 27 hours. Media is abuzz with interpretations of his sudden and short visit; it is quite apparent that he was here to unveil his project on Free and Open Indo-Pacific (FOIP) which he had announced to do in the Shangri-La Dialogue in Singapore last June. His visit coincided with that of Xi Jinping to Moscow to show solidarity with Putin at war with Ukraine.

Note that Kishida flew from here to Kiev to express his support for Zelenskyy. So the predominant purpose of his visit to Delhi was obviously to discuss the war with Prime Minister Narendra Modi as he (Kishida) holds the G-7 Summit in Hiroshima in May, and he would like to mobilise support from major countries, including India against ‘Russian aggression’ in Ukraine.

Tokyo and New Delhi have divergent responses to the Ukrainian war. Japan has joined the US-led allies on the war in imposing sanctions against Russia and selling arms to Ukraine. Japan views the Russian military action in Ukraine as the clear violation of international norms and causes disruption in food and fertilizers security in addition to tragic human and material losses. India’s reaction is muted; New Delhi has not called out Russia as an aggressor, not joined the sanction regime, and in fact has bought oil from Russia to the chagrin of western countries.

While India and Japan’s relations are quite close, it is anyone’s guess if New Delhi will shift its position for G-7 Summit or G-20 in September, which India is presiding. Interestingly, while Xi Jinping is perhaps nudging Putin to go for solution to the conflict, Kishida is persuading India to take position against both China and Russia.

In fact, containing China for the stability and security in India-Pacific region is another main purpose, equally important for Japan, for Kishida’s visit. In concrete terms, Tokyo has formulated the strategy called Free and Open India-Pacific (FOIP) which dovetails with Japan’s National Security Strategy adopted last December. Among other things, the strategy suggests deployment of cruise missiles to strengthen their strike-back capability as Japan faces continual missile threats from North Korea, an ally of China. It also advocates using development aid more strategically in support of like-minded countries. The FOIP flows from this strategy.

Kishida announced and outlined the FOIPin the Sapru House lecture delivered in Indian Council of World Affairs (ICWA). It is estimated that FOIP is a whopping 75 billion USD project to check China’s growing influence and assertiveness across the region. It consists of providing patrol vessels, enhancing maritime law enforcement and capabilities, maintaining cyber security, digital and green initiatives and economic security. In order to do so, FOIP suggests enhancement of human resource for maritime security, rule of law and governance in at least 20 countries by training 2300 personnel.

Furthermore, Japan is seeking to extend assistance to emerging economies around India-Pacific region in terms of equipments like patrol boats, provisions for coastguards and other infrastructure support. In particular, Japan has committed in FOIP two-billion USD for maritime security equipment, enhancement of transport infrastructure needed for freedom of navigation and rule-based order in the region. Tokyo maintains that India is an indispensable partner and should play a big role in this project because of its geo-political location and New Delhi’s risks with Beijing.

Japan and India’s security interests converge as Beijing has been nibbling away India’s territories by making incredible and illegitimate claims on Arunachal Pradesh and Ladakh. Since 2020, India has been in intermittent conflicts with China as 20 Indian soldiers and unaccounted Chinese soldiers died in unprovoked clashes. Likewise, Japan is deeply concerned as Beijing claims territories in East China Sea including Senkaku Islands belonging to Japan and entire South China Sea. Such claims have rattled Beijing’s smaller neighbours including Japan. FOIP, therefore, is clearly aimed at countering China’s egregious expansionism.

Note that 15 years ago Shinzo Abe spoke about India-Pacific cooperation during his visit to Delhi. Quad consisting of USA, Australia, Japan and India was created out of this initiative by Japan. Quad does not have anovert security agenda although Quad members are engaged in ‘Malabar Naval Exercise’. The next Quad summit and Malabar Exercise will be hosted by Australia later this year. It is not difficult to discern that FOIP will provide the security arm to Quad.

Another purpose of Kishida’s visit was to somewhat align the G-20 agenda with that of G-7. G-20 has industrial and emerging market countries, which is referred to as Global South. India is seemed to be representing the voice of Global South in current global politics which reflects the ‘active non-alignment’, a strategy initiated by Latin America. I discussed this strategy in a column in early March titled ‘India & Ukraine War; Active Non-Alignment.’This strategy is at variance with the western approach to defending democracy and rule-based order in the world.

India-Japan ties are the key to the stability in the region as both countries risk territorial belligerence from Beijing. In recent periods they have developed strong bilateralism. They share special partnership.Initially, India-Japan relations were elevated to 'Global Partnership' in 2000, which graduated to ‘Strategic and Global Partnership' in 2006, and then to 'Special Strategic and Global Partnership' in 2014. The structure of this partnership consists of annual summits which began in 2006; the last summit was held in March 2022 in New Delhi;and alsohas 2- and-2 Foreign and Defence Ministerial Meeting around the annual summit.

India and Japan share strong economic ties. Trade between the two was worth USD 20.55 billion in fiscal year 2021-2022. The Japanese investments in India touched USD 32 billion between 2000 and 2019. India’s import from Japan was 14 billion USD during the same period. Japan has been supporting infrastructure development in India, including a high-speed rail project. In fact, India-Japan partnership covers various sectors – security, defence, trade and investment, science and technology, education and health care, critical and emerging technologies. Discussions are on to conduct joint projects in third countries in the region. FOIP may provide that opportunity.

There is a good deal of warmth between Indian Prime Minister and his Japanese counterpart. Shinzo Abe, the former Prime Minister of long-standing, was considered a ‘friend of India’. The current Prime Minister Fumio Kishida met Modi three times in 2022 and will meet three more times this year. They will meet at G-7 Summit in May, G-20 in September and Quad Summit in Sydney later this year. The bonhomie between top leadership has been conducive to building seamlessly the bilateral partnership.

Kishida’s visit should have, as usual, contributed to strengthening the special partnership between two countries. However, the moot point ishow the two friendly countries converge their responses to the war in Ukraine and consolidate their alliance vis-à-vis China. ---INFA

(Copyright, India News & Feature Alliance)