In the Supreme Court of Erewhon: The unseen judge opines

The ‘Modi’ defamation case that got Rahul Gandhi sentenced to two years imprisonment and disqualified as an MP reaches Erewhon’s court.

The difficulty with the Congress is the Rahul Gandhi question, in that he is neither consistently leading from the front nor quitting, doing one or the other sometimes, and sometimes doing both together. | Photo Credit: Manvender Vashist Lav/PTI

This is a petition filed by one Mr Rahul Gandhi where he has sought an interim stay of the trial court judgment which sentenced him to two years imprisonment for a statement made by him that allegedly defamed persons carrying the name Modi. The complaint was filed by the local Secretary of the BJP, who carries the surname Modi.

In the normal course, I would have granted the prayer without much ado, especially since the sentence incurs disqualification of his seat in Parliament. As it is, there is a shortage of opposition MPs in the body. And the offence is one of defamation in a political speech. We give politicians much latitude in political speeches; their promises are not meant to be kept, their alliances are not meant to be permanent, their ideologies are mutable, and accusations are the name of the game. And it is difficult to see how linkage with the name Modi has caused any loss to this local party Secretary; the contrary is likely to be the case.

However, considerations of national interest sometimes weigh heavily on a Court, and on such occasions we may place individual interest on a secondary platform.

It is the essence of a democracy not just to have elections but also to have a worthwhile opposition. This may not yet be identified as part of the basic structure by the Courts, but common sense and practical politics deem it to be so. Now the scene is littered with opposition parties across the country at the regional level, one or two which try to be multi-State, and one party, the Congress, which has the national tag but rules only in a few States. This is not much of a choice to offer the voter, and if there isn’t much choice then what kind of election is it, and without a proper election what kind of democracy is it?

Now the difficulty with these parties coming together seems to be the Congress, and the difficulty with the Congress is the Rahul Gandhi question, in that he is neither consistently leading from the front nor quitting, doing one or the other sometimes, and sometimes doing both together. And while he is around, the party dynamics arising out of years of family control do not permit any other person to take the lead.

Meanwhile, the opposition is loath to have him in the lead since that is what the Prime Minister would salivate at. The Prime Minister has expertly converted a parliamentary system of election where one votes for the party into a presidential system where one votes for the candidate. With all his minus points on governance, Mr Modi is a campaigner par excellence, while Mr Gandhi for all his well-meaningness just doesn’t seem to have the stuff. Again, that is a dim choice for the voter. Democracy needs real choices, not the TINA factor.

The solution is simple—keep the Gandhi element out of the way for now, let the party throw up some leaders, perhaps a Kharge and a Tharoor assisted by the young Pilot and the energetic Kanhaiya Kumar; let them ally with other opposition parties so that the coming election can see some sort of a contest between competing ideas of the idea of India and what this country needs. A worthwhile election. To make for a worthwhile democracy.

But for that to happen Mr Gandhi must be kept out of the scene, and what better tool than the law to do it? Simply by enforcing a conviction. True, the petition seems to suffer from manifold defects. One that comes across sharply is that the complainant stalled the proceedings for a good length of time by filing a petition in the High Court, then lo and behold he withdrew it after the lower court judge was changed. And, lo and behold again, the new judge passed the conviction within a very short time.

The decisions of the appellate court orders denying relief to Mr Gandhi are far from satisfactory. But, as mentioned above, this may be a case where we should let such infirmities work for the larger cause, for the national good of worthwhile elections. This answers to the real test of affording the voter a real choice to elect between one and the other rather than hopelessly rubber-stamping.

Samuel Butler, author of Erewhon. | Photo Credit: Wikimedia Commons

This course of action by this court will afford Mr Gandhi much relief, as we see it. By the simple act of bowing his head down and accepting the conviction and going to jail, he will end up as a martyr and a national hero. By doing nothing he will reach the zenith. Indians love sacrifices. By invoking martyrdom, elections have been snatched from the jaws of defeat, as witnessed in the Congress party’s case during the unfortunate deaths of Mr Gandhi’s ancestors. And our history has memorable instances of national leaders such as Lokmanya Tilak and Mahatma Gandhi accepting a prison sentence in protest and then trumping the law, the judge, and the State. Mr Gandhi will take his place among such greats with ease, which he may not be able to do even with effort otherwise. This is tailor-made greatness, being born into it and having it thrust upon you. The enduring halo trumps the fleeting crown.

Mr. Gandhi might usefully use the time in prison. Political minds and political thoughts have been forged from captivity behind prison bars; much reading can be done, and he may familiarise himself with great writings. Starting from his grandfather—he could obtain glimpses of world history, discover India, and possibly himself. He may also undertake a course in the fallacies of logical thinking that lead to the kind of absurd generalisation that we are seeing in the present case. Of course, when he does emerge after serving his sentence, he should be accorded a hero’s reception, having become the instrument of opposition unity.

The law on sentencing has evolved, making it possible for a Court to take note of myriad factors, including reformative possibilities and the larger public interest involved. These appear to converge in a systemic way. And while Mr Gandhi may suffer curtailment of individual liberty for a short while he is after all a politician, and politicians must be prepared to make some sacrifices for the country, seeing that the country makes plenty of sacrifices for them.

There is not much doubt that if the sentence is given effect to in the manner above, the original complainant will again come knocking on our doors to withdraw his complaint, since its success would have led to opposition unity and created some creases of worry for his party leaders. When he does come, he will be met with a stern refusal and sanctions.

Erewhon (anagram of Nowhere) is based on the novel Erewhon by Samuel Butler set in a fictional country. The court, the judge, and the judgment in this satire are fictional. Sriram Panchu is real. He is a Senior Advocate at the Madras High Court.