A jail sentence for Rahul Gandhi in India’s new vishwaguru democracy

To understand how India’s democracy is evolving, consider some recent events.

A judge in Gujarat sentenced Congress leader Rahul Gandhi to two years in jail for criminal defamation because he said four years ago that “all thieves have the Modi surname”. India’s criminal defamation law is not supposed to work like this. Only a specific Modi who can show how his character has been defamed can file such a suit, but this did not appear to matter to the judge. “It is strange that a judge – any judge – could be unaware of a legal proposition this basic,” tweeted Gautam Bhatia, a constitutional lawyer.

In India’s changing jurisprudence, where even Supreme Court justices have, often, indulged government demands, however contrary to the law they might be, the judge’s ruling was not so strange. Earlier in the week, in Bengaluru, Kannada actor Chetan Kumar Ahimsa was arrested and sent to 14 days custody for a tweet that said Hindutva – the Hindu-first ideology propounded by India’s ruling Bharatiya Janata Party and its allies – was “built on lies” and could be “defeated by truth”.

The police acted on a complaint from a member of the Bajrang Dal, one of the most virulent and violent outfits allied with the BJP. “We file an FIR [First Information Report] whenever we receive a complaint,” a police officer was quoted as telling the Deccan Herald. “We go by the law.” This is justification for a legal action that cannot be justified under Indian law and its Constitution.

The police are supposed to file FIRs for every complaint they receive of what is called a cognisable crime, in which they can make an arrest without a warrant or court permission. But there is no obligation on them to act on every complaint they receive. Yet, that is what they do, with alacrity, when complaints are made by those close to the BJP. Conversely, the police have been known to be reluctant to file complaints when even rape and murder are alleged.

The laws invoked against Ahimsa are Indian Penal Code sections 505(2) – “statements creating or promoting enmity, hatred, or ill-will between classes” – and 295(A), “deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs”. These are descriptions that can be used for almost any views. For every arrest, there is supposed to be a judicial check. Yet, when Ahimsa was produced before a judge, he was remanded to 14 days custody – for an offence that isn’t one. Two days after his arrest, he was granted bail, but the case will continue.

As Ahimsa was being arrested, in New Delhi the police filed 100 FIRs and made six arrests, including owners of printing presses, for posters saying “Modi hatao, desh bachao”. Remove Modi, save India. The police, run by the Union Ministry of Home Affairs under Amit Shah, removed 2,000 posters and seized 2,000 more that appeared to have been headed for offices of Delhi’s ruling Aam Aadmi Party. The FIRs largely quoted laws related to the Prevention of Defacement of Public Property Act, and Press and Registration of Books Act.

Just before the Delhi arrests, a judicial check worked, somewhat, in a court in India’s far east. A teenager was released in Assam after spending two months in jail, on patently fake charges of terrorism. Barshashree Buragohain, 19, wrote a poem titled, “Akom korim rashtra droh.” Again I commit sedition.

The police argued, with fact-free logic, that she had committed an “act of rebellion against the nation”, and the poem would lead young people to join the United Liberation Front of Asom, Independent, or ULFA-I, a separatist group. Chief minister Himanta Biswa Sarma carried the bizarre justification further. “She will return as a human bomb and kill us if she joins ULFA-I,” he said.

Criminal cases, arrests and jail sentences over a speech, tweet, poem or poster reflect a growing paranoia and intolerance of expression, even more than usual in recent years, as Modi’s BJP makes clear the contours of India’s emerging authoritarian democracy. Whether in Parliament or on the street, a furious, draconian, and legally untenable reaction to dissent in India reveals that the constitutional definition of democracy is irrelevant. It is now what the BJP says it is.

You could call India’s new democracy the vishwaguru version, of a sort never intended by its founding fathers but being created for the Hindu rashtra they rejected, a Hindu nation that exists in all but the official name. Vishwaguru, or guru to the world, is a term that Modi uses often, consanguineous with the phrase “mother of democracy”.

Vishwaguru democracy loudly declares that India leads the world in democratic ideals. What it does not declare quite as loudly is that it does not encourage questioning of its claims – or any questioning at all. In sum, India’s vishwaguru variant of democracy is exquisite irony, quite the opposite of what it claims to be: it teaches the world not how democratic norms can be strengthened but insidiously dismantled, with popular support.

In the vishwaguru definition of democracy, the ruling party, the prime minister and the government are analogous to India itself. Criticism of any of these is traitorous and criminal, including any mention of democracy being in danger. That was explicitly stated by the law minister, who has been systematically attacking the Supreme Court as an impediment to this version of democracy.

“No one will escape. Those who work against the country will pay a price,” Kiren Rijiju said, referring to Rahul Gandhi’s criticism that Indian democracy is imperilled, and to the assertions (here, here and here) of some retired Supreme and High Court justices that India’s democracy is in decline. The irony that his threat only appeared to confirm what the judges were saying was, of course, not as much lost to the minister but irrelevant to him.

Threats against dissent from the highest echelons of government are creating an atmosphere that provides official sanction for wrongful legal action and allows vindictiveness to spread easily. A raft of laws is now freely, indiscriminately, and illegally used to clamp down on opinion inimical to the ideology of the ruling party and its adherents, even as the law is usually discarded when they violate it.

In BJP-controlled Maharashtra, over four months, 50 rallies were held where right-wing speakers, including BJP legislator T Raja Singh and Suresh Chavankhe, editor of a right-wing propaganda TV channel called out by the Supreme Court for hate speech, abused and threatened Muslims.

These rallies continued even though the court had clearly said a few months ago that the police were bound by the law to stop them. In India’s new democracy, police provide security and allow free expression for hate speech, while a teenage poet, an actor with an opinion and political opponents face criminal action.

The message that hate speech and fake news will be protected, as long as it furthers the ruling party’s interests, and free expression inimical to the government will be prosecuted is heard loud and clear by Hindutva’s stormtroopers. It is heard by those sworn to work by the law and the Constitution, by ordinary people, even in Opposition-ruled states, where they are jittery about their Hindu voters turning against them. It is heard by CEOs, police officers, judges and journalists, as the narratives of vishwaguru democracy spread across the land.

How these narratives make their way from the fringes of the far right to the mainstream media—which once mocked them – and public consciousness to government policy, from whispered fantasy to accepted fact, is described by Alishan Jafri and Kaushik Raj’s study of the conspiracy theory of “land jihad” in Article 14.

Once the narrative is embedded, it is hard for most to go against the tenets it establishes and the ideology it represents, as the events of just this month indicate.

In Communist-ruled Kerala, a temple hastily changed the colour of its walls from green – which right-wing nuts said was an Islamic colour – to ivory. In Congress-ruled Chhattisgarh, as police watched, Hindus stopped a woman’s burial on the grounds that she had converted to Christianity.

Fundamentalists stopping Christian prayer meetings and accompanying police arresting those praying is routine: here are the latest examples from Congress-ruled Himachal Pradesh and BJP-run Uttar Pradesh. In Delhi, two university student were barred from exams for a year for watching a BBC documentary that the government blocked and furiously criticised on social media as being a “conspiracy against India”.

In Maharashtra, where the difference in police approach to minorities changed significantly with a recent change in government, police allowed Hindu fundamentalists to frenziedly attack any sign that said Aurangabad, a city named after a Mughal emperor regarded by the right wing as a bigot. In Maharashtra, too, a Muslim man faces criminal charges for praising Aurangzeb on WhatsApp, as Hindu fundamentalists pressurise the local panchayat to expel his family from the village, which – to its credit – the panchayat refuses to do.

The police case against the young man was another example of how laws are applied in vishwaguru democracy. He was charged, like the Kannada actor Ahimsa, under Section 295 of the Indian Penal Code, a law that clearly did not apply here – unless you consider WhatsApp as a place of worship. Given the current state of India’s jurisprudence, that is not a far-fetched idea.

Samar Halarnkar is the editor of Article-14.com, a project that tracks misuse of the law and the hope it offers.