After the Gujarat High Court upheld the conviction of the senior leader of the Indian National Congress Rahul Gandhi over his defamatory remarks “How are the names of all these thieves Modi” stating that he is a prominent figure in the realm of the Indian political landscape and has a duty to ensure that the dignity and reputation of an identifiable class is not “jeopardised” due to his political activities, Gandhi has moved the Supreme Court against the Order.
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ON Friday, the Supreme Court is set to hear a special leave petition (SLP), after the Gujarat High Court declined to stay the conviction in a criminal defamation case against Rahul Gandhi, leader of Indian National Congress.
During a 2019 Lok Sabha election campaign in Kolar, Karnataka, Gandhi remarked: “How are the names of all these thieves Modi, Modi, Modi— Nirav Modi, Lalit Modi, Narendra Modi— and if you search a little, more Modis will spill out?”
On July 7, a single judge of the Gujarat High Court, Justice Hemant Prachchhak, denied the stay on the conviction and suspension of sentence of Gandhi in a 2019 defamation case.
According to the Order, Gandhi, who is a member of Parliament (MP) from Wayanad, Kerala, was seeking a stay on conviction on “absolutely non-existent grounds”.
Based on a defamation complaint filed by former member of the Gujarat legislative assembly, Purnesh Isharbhai Modi, Gandhi was convicted by H.H. Verma, chief judicial magistrate, Surat, on March 23, under Sections 499 (defamation) and 500 (punishment for defamation) of the Indian Penal Code, 1860.
He was sentenced to two years of imprisonment, which is the maximum punishment for defamation and the minimum to incur a disqualification for an MP.
Gandhi incurred disqualification from Lok Sabha under Section 8(3) (disqualification on conviction for certain offences) of The Representation of the People Act, 1951 (1951 Act).
According to Section 8(3) of the 1951 Act, a member of the Parliament or legislature of a state who has been convicted for an offence and sentenced to suffer imprisonment for not less than two years, stands disqualified from the date of the conviction.
Gandhi was granted interim bail on April 3 and his sentence was suspended until the final disposal of the appeal after he filed an appeal before a sessions court in Surat.
While Purnesh Modi in his complaint alleged that the single imputation defamed the whole Modi community, which according to him consists of 13 crore people, Gandhi in his appeal contended that the complaint was not maintainable.
In the appeal, Gandhi stated that ‘Modi’ is not a “well-defined group”. There is no specific group of persons with the surname Modi. Thus, the complainant cannot be an aggrieved party. Gandhi’s appeal however was dismissed on April 20. Subsequently, he filed a review application before the high court on April 25.
About the Gujarat High Court’s Order
The single judge of the high court observed that the complaint was maintainable because Modi is an identifiable class. The judge stated that Gandhi’s imputation impaired the cherished fundamental right to dignity and reputation of a large segment of the population of which the complainant is a part.
According to the Order, defamation is an offence of public character which involves the fundamental right to reputation and dignity.
Further, the court took into consideration the pending criminal cases against Gandhi. He pointed out that one of the defamation complaints was filed by Satyaki Savarkar, the grandson of Rashtriya Swayamsevak Sangh (RSS) ideologue Vinayak Damodar Savarkar, in a Pune court, based on remarks Gandhi made in an event in England.
During a visit to Cambridge University on March 3, Gandhi had commented: “So if five people beat up a Muslim man and one person is experiencing happiness, then this is cowardice. If you want to fight then go fight single-handedly. But no, five–ten people along with Savarkar went to beat the man”.
Gandhi in the speech said that V.D. Savarkar had written a book in which he had stated that he felt delighted after beating a Muslim man. According to Satyaki Savarkar’s complaint, these were false allegations made against his grandfather.
A day after his disqualification, Gandhi said: “My name is not Savarkar. My name is Gandhi. And Gandhis don’t apologise”.
In this context, the high court remarked: “It is now the need of the hour to have purity in politics. Representatives of people should be men of clear antecedent.”
Lastly, the court added that the argument that since Gandhi is a first-time offender so he should not attract the maximum punishment for the crime would not come to his aid because Gandhi has a public standing and any utterance by him attracts large-scale publications, which increase the seriousness of the offence.
“Being a public personality [Rahul Gandhi] is vested with the duty to exercise this vast power [of attracting the public] at his disposal with caution ensuring that dignity and reputation of a large number of persons or any identifiable class is not jeopardised due to his political activities or utterances,” the high court observed.
Considering all these circumstances, the court observed that refusal to stay the conviction would not result in injustice.
About the petition
According to the SLP filed by Gandhi, the first and foremost ground of contention is that the conviction Order has “no parallel or precedent” in the jurisprudence of defamation in India.
Because of this, Gandhi has suffered irreparable injury coupled with irreversible consequences as he has incurred a disqualification because of his conviction.
The petition states that Modi is an undefined amorphous group. The surname Modi in different parts of the country encompasses different communities and sub-communities, which usually have no commonality or uniformity.
The petition claims that the conviction goes against the well-established law of defamation, which states that to constitute an association or collection of persons there has to be an identifiable body as distinguished from the rest of the community.
Adding to this, the petition points out that three specific persons (fugitives accused of economic crimes Nirav Modi, and Lalit Modi, and Prime Minister Narendra Modi) were named in the speech, who alone could have possibly suffered prejudice. But they have not filed a complaint.
Contrary to this, the complainant simply carries a ‘Modi’ surname and has shown no prejudice or damage caused to him specifically, the petition states.
Further, the complaint has failed to prove the most important ingredient of defamation based on any evidence, which is an “intention to defame”.
Lastly, the petition argues that the stay on the suspension of conviction under Section 389 (suspension of sentence pending an appeal; release of appellant on bail) of the Code of Criminal Procedure does not distinguish between the nature of the offences committed.
According to the petition, the stay of conviction is based on two guiding factors, namely, that no serious offence (which is punishable with death, life imprisonment, or imprisonment of a period not less than 10 years) is involved and that the offence must not be of moral turpitude.
None of these factors has been taken into consideration and the offence of defamation has been erroneously and unprecedentedly elevated to the status of an offence involving moral turpitude, the petition avers.
“[The conviction] will set a disastrous precedent, wiping out any form of political dialogue or debate which is remotely critical in any manner,” the petition concludes.
