For a court system with a backlog of 40m cases, there was one lawsuit that recently appeared to move through India’s courtrooms unusually fast.
The case related to India’s most well-known main opposition leader, Rahul Gandhi, and comments that he had made at a campaign rally during the 2019 general election.
In a speech, Gandhi had compared his political rival, the incumbent prime minister, Narendra Modi, with two convicted criminals who also bore the same surname. “Why do all these thieves have Modi as a surname?” Gandhi asked the crowds gathered in the state of Karnataka.
Hundreds of miles away in Gujarat, Purnesh Modi, an elected representative of Modi’s Bharatiya Janata party (BJP), appeared to take the comment personally. He filed a legal case against Gandhi, who was then president of the Congress party, alleging he had defamed the “entire Modi community”. According to rough estimates, there are about 130 million people called Modi in India.
For the next two years, the case progressed at a glacial pace common to India’s courts, with months-long gaps between hearings at the magistrate court. But after the judge refused to comply with Purnesh Modi’s request that Gandhi be summoned to the court for a second time, Modi went to the high court to make an unusual request: that the case be indefinitely halted. The Gujarat high court agreed.
It remained on pause until 16 February this year, when suddenly Purnesh Modi decided he wanted to unfreeze the case, and he returned to the high court, citing “new evidence” that would never appear.
The court once again agreed. This time, with a new judge at its helm, the case moved, as one Congress leader described it, like a “bullet train”. Seven hearings took place in just 20 days and by 23 March the judge was ready with a verdict.
Gandhi was swiftly found guilty of defamation and sentenced to two years in jail, the maximum possible sentence. Gautam Bhatia, a lawyer and constitutional law expert, called the verdict against Gandhi “completely indefensible from any perspective”.
The BJP moved fast after the conviction: within 24 hours Gandhi had been expelled from parliament and 12 hours after that he was evicted from his MP’s bungalow. He is now appealing against the cases on the basis that the verdict was “harsh and excessive” and made in “hot haste”.
While the government has been accused of systematically targeting and weakening the opposition since Narendra Modi was elected in a landslide win in 2014, the expulsion of Gandhi was seen as taking it one step further.
The BJP have denied any involvement in Gandhi’s case, saying it was an independent decision by the courts, but the opponents called the timing uncanny.
Just over a week earlier, Gandhi – who has long fielded accusations of being toothless and ineffectual in the face of Modi’s populist politics – had begun leading protests in parliament, demanding answers over Modi’s close relationship with the billionaire industrialist Gautam Adani, who was recently accused of massive corporate fraud.
Gandhi’s dogged refusal to drop the Adani issue was seen to bring embarrassment to the prime minister and united the usually fractured opposition parties.
Those parties say the government has routinely used tools of the state to go after political rivals, in particular investigating agencies tasked with looking into corruption or fraud. According to government statistics cited by the opposition, 95% of the actions taking by these agencies over the past seven years have been against opposition party members, and dozens of MPs have faced arrest, jail or questioning.
Many fear the crackdown will escalate ahead of the general election next year, even as Modi’s popularity among voters remains untouchably high.
“These agencies are primarily used to harass, intimidate and defame political rivals,” said Pawan Khera, spokesperson for the Congress party. He recently found himself the target of a case, as he was pulled off a plane by police and arrested for allegedly making a slur against Modi.
Khera alleged that the threat of these investigations was being used to coerce opposition members into joining the BJP to make such cases go away and to cripple state governments ruled by rival parties by imprisoning their top leadership. “It’s a clear formulation to force people to compromise with them or intimidate them into silence,” he said.
Derek O’Brien, a leader of the opposition All India Trinamool Congress party, which has had several MPs caught up in such investigations, called the use of the agencies brazen. “This is bigger than trying to take down the opposition, it’s about destroying our federal system, our parliament, our constitution, our democracy,” he said.
Gopal Krishna Agarwal, spokesperson for the BJP, said the Modi government was simply pursuing the anti-corruption mandate they had been elected on. “Opposition has been using power for personal gain. They were of the opinion that nobody can catch them, that they were above the law of the land, but that’s not the case under the Narendra Modi government,” he said.
Yet for critics and legal experts the verdict against Gandhi has also fuelled a growing concern that India’s judiciary has increasingly come under the thumb of the government and is now being weaponised against opponents, with severe consequences for India’s democracy – which is already seen as threatened by an erosion of press freedom, oppression of minorities, particularly Muslims, and an unprecedented concentration of power under the executive.
With the BJP commanding a huge parliamentary majority, MPs banned from voting against their own party, and the politicisation of “autonomous” government bodies, as well as a largely stifled and compliant media, the judiciary is considered by many as India’s only remaining independent check on the power of the executive.
Attempts by prime ministers to exert control over the judiciary are nothing new: both Jawaharlal Nehru and Indira Gandhi, India’s two most powerful past leaders, altered the constitution to gain more judicial control. In 2015, Modi made a similar attempt to give the government a say in judicial appointments, but that was struck down by the supreme court.
According to lawyers and experts, in recent years the Modi government has implemented a more covert method of coercing the judiciary, using the only power left – that of backdoor influence over the appointment, promotion and transfer of judges.
While appointments are technically made by a “collegium” of judges behind closed doors, the government can voice its concerns and it has to give a final warrant to approve any appointments. This so-called “pocket veto” is allegedly now routinely used by Modi government to transfer or blockade the promotion of judges who are not seen as pro-government or are too “pro civil liberties”, and to push for the promotion of judges it sees as favourable to its interests.
“There is attempt to control the judiciary through the appointment process,” said Madan Lokur, a former supreme court judge. “While this may not have an immediate or visible impact, it will certainly undermine its independence in the medium term.”
Anjana Prakash, a senior lawyer and former judge at the Patna high court, described how the government “withholds names, clears some at their will and thus manipulates appointments and transfers to its short-term gain”. She added: “At a time when our society is becoming less and less tolerant, this trend is dangerous to say the least.”
While lawyers said it was hard to prove government influence over the verdicts, they pointed to the reluctance by judges to take up politically sensitive cases concerning civil rights, as well as the refusal to grant bail to anti-government activists.
In several cases judges who had passed verdicts protecting civil liberties or condemning the actions of the government or police had been transferred and were now languishing in smaller courts, their promotions to senior positions blocked.
“It sends a signal down the chain from the highest to lowest courts that this is the cost of judgments that go against the executive or are pro-liberty – that it will just be reversed by a higher court, sometimes with strong language,” said Bhatia.
Meanwhile judges who delivered favourable judgments have gone on to take up prestigious retirement roles offered by the government – most notably Ranjan Gogoi, who as chief justice delivered several politically advantageous verdicts for the Modi government in the supreme court in 2018 and 2019. Four months after he retired, in an unprecedented move, the government nominated him for a seat in the parliamentary upper house.
Agarwal, the BJP spokesperson, insisted that the judiciary’s independence remained sanctified: “There are issues around judge appointments but as far as the judiciary is concerned nobody can influence them, the whole structure of the courts is totally independent. India’s democracy thrives on institutions, whether it is the judiciary, media or election commission, parliaments. These agencies are all there to balance power and they are all working fine.”
But Bhatia said that the onslaught by the government on the judiciary had left its ability to stand up to the executive enfeebled, weakening one of the last pillars of democracy still standing in India.
“When the judiciary has to firefight from multiple angles it is drained of a certain amount of political capital so of course they will pick their battles,” he said. “But if the courts aren’t in a position to exercise scrutiny then ultimately there will be nothing to stop the executive doing what it wants to do.”
