India Reminds Us Why Our First Amendment Matters

By Dominic Pino

Tuesday, March 28, 2023

 

Rahul Gandhi, an opposition leader in the Lok Sabha (the lower house of India’s parliament), was disqualified from office last Thursday after being convicted of defamation. He was sentenced to two years in prison over remarks he made in 2019 that disparaged people with the surname “Modi.” Of course, the most prominent person in India with that surname is the prime minister, Narendra Modi.

 

Prime Minister Modi did not file the case against Gandhi, but rather Purnesh Modi, a state legislator from Gujarat, the prime minister’s home state. At a campaign rally in 2019, Gandhi said, “Why do all thieves have Modi in their names, whether it is Nirav Modi, Lalit Modi, or Narendra Modi? We don’t know how many more such Modis will come out.”

 

Nirav Modi and Lalit Modi are prominent businessmen who have been investigated for various forms of wrongdoing in recent years. Neither they nor Purnesh are related to the prime minister, and “Modi” is a relatively common last name in Gujarat and other states.

 

Until his conviction last week, Gandhi had been a leader of the Indian National Congress (INC) in the Lok Sabha (he was also president of the party from 2017 to 2019). The remark was made during an election year, and alleging corruption in the Modi government has been one of the top messages the INC has used to campaign against the ruling Bharatiya Janata Party (BJP). Gandhi was mentioning two other famous people named “Modi” that his audience would be familiar with and cheekily noting that they were corrupt, as he campaigns against a prime minister he believes to be corrupt.

 

This is the sort of thing that is clearly protected speech under the First Amendment to the United States Constitution. But the First Amendment to the Indian Constitution does the exact opposite of our First Amendment: It describes the ways that the government can limit speech.

 

The Indian First Amendment says that the government is permitted to make “reasonable restrictions” on free speech and other fundamental rights “in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” In the statement of objects from the act that adopted the Indian First Amendment, it says, “In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.”

 

Accordingly, like most other countries, India has stricter defamation laws than the United States. Gandhi was convicted under Section 499 of the Indian Penal Code, which says: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases hereinafter excepted, to defame that person.”

 

There is an exception for speech about the “public conduct of public servants.” It says, “It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.” But the argument from Purnesh Modi was that Gandhi’s comments defamed all Modis, not just the prime minister. A literal reading of Gandhi’s comment does indicate that, and without the backing of something like the U.S. First Amendment, it’s possible to see how these laws can be used to convict for comments such as Gandhi’s.

 

A BJP supporter could point out that if this is democratic backsliding, it’s still a long way from sliding back to the government of Rahul’s grandmother Indira Gandhi, who declared a nearly two-year state of emergency from 1975 to 1977 and ruled by decree, arresting political opponents and censoring the press along the way. The Gandhi family (which are the descendants of India’s first prime minister, Jawaharlal Nehru, and are not related to Mahatma Gandhi) has essentially run the INC as a family business and engaged in plenty of corruption of its own, including under Rahul’s father Rajiv, who was prime minister from 1984 to 1989.

 

An INC supporter could point out that the timing of this conviction is suspicious, given that Rahul had recently completed the Bharat Jodo Yatra, a 146-day march across India to unite the opposition against the BJP. It also comes after Modi had censored a BBC documentary critical of his tenure as chief minister of Gujarat, so Gandhi’s conviction is not the only move against free speech the government has taken recently. Gandhi was also a harsh critic of Modi’s ties with Gautam Adani, the Indian billionaire whose front-page scandal is now out of the headlines thanks to this conviction.

 

James Madison could point out that this exact episode is why you don’t let the government pick and choose which types of speech to allow in the first place. It will always devolve into partisan squabbling, which will result in selective enforcement against political opponents. That’s especially true in political situations like India’s current one, where the BJP has an outright majority in parliament on its own and enjoys broad popular support, while the INC’s image is weak, and it holds fewer than 10 percent of the seats in the Lok Sabha.

 

Some in the United States might look at the wording of India’s First Amendment and find it appealing. India’s actions last week should remind us all why it is not, and why we should be grateful for the strong free-speech protections we have.