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LAWFARE: INTERSECTION OF LAW AND POLITICS

INTRODUCTION

The term lawfare refers to the use of law as a weapon in the arena of politics. Historically, the term exclusively referred to the use of law in the war[1] however it has gained a new perspective in today’s age. The intersection of various organs is indispensable in a welfare state as the functions performed by the state increase. Indian Constitution provides for some intersection between legislature and judiciary primarily for the purpose of checks and balances to prevent abuse of power by any organ of the government. The intersection can be divided into two parts – direct interference guided by various provisions and indirect interference not foreseen by the constitution makers, not with the aim of checks and balances.

BACKGROUND

The disqualification of former parliament member Rahul Gandhi has been making headlines and has garnered debate around the term lawfare[2]. There is a discourse around the legalities of the case and broadly speaking on the relationship between politics and law[3]. Secondly, another case in the news was that of the Delhi Chief Minister filing Right To Information (RTI) to gain the educational qualification of current Prime Minister, Narendra Modi which was dismissed by the Gujarat High Court additionally, a fine of 25,000 was also imposed on him[4]. The notion behind adding fines points toward deterrence. The disqualification of Rahul Gandhi was due to a conviction passed by the Surat Court on Criminal Defamation under Section 499 of the Indian Penal Code[5] owing to his remark, “How come all the thieves have Modi as the common surname?” Subsequently, on his conviction, he was disqualified. The rules applied in this regard are – Article 102 of the Constitution of India[6] talks about grounds for disqualification of membership, one of them being disqualification under any laws made by the parliament. Section 8 Sub Section 3 of the Representation of the People Act, 1951[7] talks about disqualification on conviction of an offence with imprisonment of two years or more further, future effect as well in terms of six years bar after his release. 

HISTORY

The first parliamentarian to lose his seat due to conviction was Rasheed Masood in October 2013[8]. Historically the controversial case of disqualification of the then Prime Minister Indira Gandhi leading to the imposition of an emergency was a landmark case demonstrating the role of the judiciary in politics. Another is the dissolution case wherein the judicial decision did not take into account the possible aftermath of its decision in terms of changing political scenarios[9]. In the Sahara Birla Case, the Judiciary was under severe criticism, PIL was filed for registration of FIR and independent probe with respect to documents obtained by the Income Tax Department in the raid conducted on offices of Sahara and Birla group companies allegedly hinting towards bribe given to BJP leaders[10]. The Court dismissed the PIL on the grounds that the diary entries are not admissible as valid evidence under Section 43 of the Indian Evidence Act[11]. However, such an enquiry ought to be done at the stage of trial court proceedings and shall not be a ground for non-registration of an FIR. The essential component for registration of FIR is the presence of an allegation of cognizable offence and if such an offence is prima facie made out. Another possibility is the indirect interference that people in power may have over judicial workings especially political interference in various ways. The Courts should recognize and stop such activities as they hinder the delivery of justice. For example, in the Kolhe murder case SID report was sought on the role of ex-CM Uddhav Thackrey in suppressing the case however, the murder case was later classified as robbery[12].

ANALYSIS

The underlining need is to take into account these various instances of weaponization of law that may also go against the true intent of the lawmakers but be permissible according to the black letter law. Section 8 Sub-Section 3 of the Representation of the People Act, 1951[13] puts the same legal consequence for a person that commits criminal defamation and sexual assault it is argued that there is a need for gradation as such extremes ought not to be kept on the same plane. The intention behind this law is to keep politics away from criminal shadows however, by putting two extreme offences of different nature it gives way for possible weaponization of the law. In line with the intention of lawmakers, it is important to ponder upon the nature of offences as well. Another facet of weaponization of law[14] apart from political background is lawfare aimed at curbing dissent where vague laws may be interpreted to curb the voice of reporters and media[15]. An example of this can be Sedition Law, colonial law misused to a great degree to suppress the voice of protest due to its ambiguity[16]. A positive take by the Supreme Court in this regard was during farmer’s protests where it held that “Farmers have the constitutional right to continue with protest”[17]. It is paramount in preserving democracy that the right to peaceful protest shall lie with the citizens.

CONCLUSION

The suggestion to these aforementioned issues is to strengthen the independence of the judiciary not just in black letter law but also in spirit. The same can be achieved by providing training to judges in handling politically sensitive cases, and providing better security to judges so that they can truly be free from political pressures and not at risk of criminal intimidation. Another facet is to acknowledge the importance of the nature of the offence in Section 8 Sub-Section 3 of the Representation of the People Act, 1951[18] in order to prevent politically induced weaponization of law. There is a grave need for a more independent judiciary as reflected in the 2022 Rule of Law Index by the World Justice Project wherein India is ranked 77th among 140 countries one of the main reasons for the same as mentioned in the report is the lack of enough safeguard to fundamental rights wherein India ranks 94th among 140 countries and lack of order and security wherein India ranks 105th among 140 countries[19].

Author(s) Name: Honey Acharya (Symbiosis Law School, Pune)

References:

[1] Stephens and Dale, ‘The Age of Lawfare Part VII: The changing character of tactics: Lawfare in Asymmetrical Conflicts’ (redirecting…) accessed 16 May 2023.

[2] Bhatia G, ‘A Disturbing Example of the Normalisation of Lawfare’ (A disturbing example of the normalization of lawfare – The Hindu, 29 March 2023) accessed 16 May 2023

[3] Mannathukkaren N, ‘Rahul Gandhi Disqualification: It’s More about India’s Democratic Journey (Return to the front page, 7 April 2023) accessed 16 May 2023

[4] ‘Fined RS 25,000 for RTI Plea on PM Modi’s Degrees, Kejriwal Says Dangerous to Have “illiterate” Pm’ (The Indian Express, 31 March 2023) accessed 16 May 2023

[5] Indian Penal Code, 1860, s. 499

[6] Constitution of India, 1950, art.102

[7] Representation of the People Act, 1951, s. 8 (3)

[8] ‘Rashid Masood, First Casualty of Apex Court Order’ (The Hindu, 16 November 2021) accessed 16 May 2023

[9] Jacob, Alice, and Rajeev Dhavan. “THE DISSOLUTION CASE: POLITICS AT THE BAR OF THE SUPREME COURT.” Journal of the Indian Law Institute, vol. 19, no. 4, 1977, pp. 355–91. JSTOR, http://www.jstor.org/stable/43950496. Accessed 5 May 2023.

[10] Simha V, ‘Birla-Sahara Case: Only an Investigation Can Settle the Unanswered Questions’ (Scroll. in, 17 March 2017) accessed 16 May 2023

[11] Indian Evidence Act, 1872, s. 43

[12] Banerjee S, ‘Amravati Pharmacist Murder: Sid Report Sought on Ex-CM Uddhav Thackeray’s Role in “suppressing” Case’ (The Hindu, 23 December 2022) accessed 16 May 2023

[13] Ibid 7

[14] Prince, ‘“Weaponization” of the Law in the Name of Democracy’ (The Statesman, 20 March 2018) accessed 16 May 2023

[15] Oon A, ‘Weaponising the Law against Free Expression’ (Southeast Asia Globe, 13 July 2022) accessed 16 May 2023

[16] ‘Sedition Law: Why India Should Break from Britain’s Abusive Legacy’ (Human Rights Watch, 18 July 2022) accessed 16 May 2023

[17] Rajagopal K, ‘Farmers Have Constitutional Right to Continue with Protest: SC’ (The Hindu, 3 December 2021) accessed 16 May 2023

[18] Ibid 7

[19] (World justice project rule of law index 2022) accessed 15 May 2023