Kirit Panwala is a well-known criminal lawyer, who represented Rahul Gandhi in the four year defamation case and will now be filing an appeal against the conviction.
“HOW are the names of all these thieves Modi, Modi, Modi— Nirav Modi, Lalit Modi, Narendra Modi— and if you search a little, more Modi’s will spill out?” This rhetorical, somewhat jocular (he was smirking), question asked by Indian National Congress leader Rahul Gandhi at a rally in Karnataka during the campaign for the 2019 Lok Sabha elections has led to his conviction in a case of defamation four years later.
Last week, H.H. Verma, a chief judicial magistrate in Surat, pronounced the judgment sentencing Gandhi to two years of imprisonment under Sections 499 (defamation) and 500 (punishment for defamation) of the Indian Penal Code, 1860 (IPC), the maximum punishment under these Sections, and the minimum needed under Section 8(3) (disqualification on conviction for certain offences) of the Representation of People Act, 1951, to disqualify a member from the Parliament.
A day later, Gandhi was promptly disqualified from the Parliament, putting a spanner in the works of his recent political resurgence via the Bharat Jodo Yatra and the fiery speeches in the Lok Sabha, in which he questioned the nexus between Prime Minister Narendra Modi and billionaire industrialist Gautam Adani. The latter’s multinational conglomerate, the Adani Group, has been under heavy scrutiny for the past two months over allegations of massive market illegalities since the release of a report by investment-research firm Hindenburg Research LLC in January that alleges stock manipulation and accounting fraud by the group.
Gandhi is represented by Surat-based criminal lawyer Kirit Panwala in the case.
Panwala has laid out ten reasons why the conviction of Gandhi is bad in law:
Almost 90 per cent of Gandhi’s supposedly defamatory allegations were against Prime Minister Modi. The defamation case could have only been filed by the person aggrieved by the offence, that is, Narendra Modi; the complainant, Gujarat legislator Purnesh Modi had no right to file a criminal complaint for the concerned imputation. Thus, the complaint is not maintainable under Section 199(1)(prosecution for defamation) of the Code of Criminal Procedure, 1973 (CrPC).
Even for the single imputation, Purnesh Modi cannot be considered as the aggrieved person because it does not concern him personally; it is against all ‘Modis’.
The Surat court convicted Gandhi for his remarks under Sections 499 and 500 of the IPC. He was sentenced to simple imprisonment for two years. This is the maximum punishment that could have been awarded by the court. Even in the gravest cases of defamation, the court does not ordinarily inflict such harsh punishment. Such punishment could certainly not be inflicted for a single imputation, which was not even elaborated upon.
The award of such disproportionate punishment gives the impression that it was only to set in motion Gandhi’s disqualification as a Member of Parliament, as two years is the minimum quantum of punishment to attract disqualification from the Parliament under the Representation of People Act, 1951. Mere imposition of a fine would have met the ends of justice in Gandhi’s case.
It is not the case that a person cannot file a complaint on behalf of a collection of persons. But that collection of persons should be a ‘well-defined group’ that is definite and determinate, and can be distinguished from the rest of the community. There are many precedents of the Supreme Court and high courts to support this argument.
A defamatory comment against lawyers as a whole or against a community as a whole does not give the members of that community the right to file a defamation complaint, unless the alleged comment is directed, for instance, towards an identifiable group of lawyers such as the lawyers of the Surat Bar Association. The complaint’s alleged argument that there are 13 crore Modis and the imputation is directed towards all of them does not stand. It is because those 13 crore individuals are not a well-defined identifiable group.
There is no ‘Modi community’ because there is no specific group of persons having the Modi surname. Modis are spread across many communities. Moreover, the complainant belongs to Modh Ganchi or Modh Vanik’s caste. There is no evidence to suggest that he is part of that community.
There appears to be no intention or knowledge to cause harm to the reputation of the so-called class of Modis or to the complainant himself. Gandhi spoke the alleged statement while comparing Narendra Modi with the fugitive businessmen Nirav Modi and Lalit Modi. His statement was clearly directed towards their common surnames. If the intention was to defame ‘Modis’ as a whole, he would have elaborated upon his alleged statement. In this scenario, mens reaas a vital ingredient of defamation is clearly missing.
Rahul Gandhi resides outside the jurisdiction of the Surat court. In such cases, Section 202(postponement of issue of process) of the CrPC is applicable, where inquiry is mandatory before issuance of the process. In this inquiry, the examination of witnesses is a must. However, no inquiry was held and no witnesses were examined.
The violation of Section 202 can be raised at any stage of proceedings. The provision in this regard was added in 2005 to prevent harassment of persons residing outside the jurisdiction of the court by filing false complaints. This is a violation of the mandatory provisions of the law and it should make the trial null and void. This has been held in Deepak Gaba & Ors. versus State of Uttar Pradesh & Anr(2023).
As per explanation 2 of Section 499 of the IPC, an imputation made against a “company or an association or collection of persons” would amount to defamation. This is read with Section 199(1) of the CrPC, which states that no court can take cognisance of a defamation case unless the complaint is filed by “some aggrieved person”.
The surname ‘Modi’ does not refer to a specific community or caste. In Gujarat, the surname is used by Hindus, Muslims and members of the Parsi community. While some members of the Other Backward Classes use ‘Modi’ as a surname, others do not. The surname is also widely used in states like Rajasthan, Uttar Pradesh and Bihar.
In G. Narasimhan & Ors. etc. versus T.V. Chokkappa (1972), the Supreme Court examined the explanation 2 of Section 499 and held that defamation against a collection of persons can only be committed if they are an identifiable group, that is, they are determined by the definiteness as a group of particular persons, who are distinguished from the rest of the community.
In this case, an imputation had been published in The Hindu newspaper against the political party Dravida Munnetra Kazhagam. The complaint was quashed on the grounds that Dravida Munnetra Kazhakam was not a definite and determinate body within the meaning of explanation 2 of Section 499 of the IPC.
Further, in V.S. Achuthanandan versus P.S. Varughese & Ors. (1993), the Kerala High Court went on to observe that the words “association or collection of persons” under explanation 2 of Section 499 of the IPC has to be read in conjunction with the expression “some aggrieved person” in Section 199(1) of the CrPC. This is to give a limited construction to the term “association or collection of persons”.
The court had said:“It is certainly not in that wide a sense that the legislature would have used the expression ‘association or collection of persons’. Otherwise, if somebody makes an imputation against Indians as a whole, every Indian would be entitled to file a complaint in a magistrate court of his choice.”
In this case, Communist politician V.S. Achuthanandan, then Leader of the Opposition in the Kerala legislative assembly, was accused of defamation.
Gandhi’s sentence has been suspended for 30 days so that he can appeal against the conviction.
It has been held by the Supreme Court in Lok Prahari versus the Election Commission of India (2018) that once the conviction gets stayed during an appeal, the disqualification as a consequence of that conviction cannot take or remain in effect. However, the consequence of the Election Commission calling for a by-poll to fill the incumbent seat before Gandhi is granted a stay or after it remains unknown.
In the case of Lakshadweep Parliamentarian Mohammed Faizal, who was sentenced to undergo imprisonment for a period of ten years for an attempt to murder on January 11 and subsequently disqualified by the Lok Sabha secretariat on January 13, his qualification was restored yesterday, over two months after the Kerala High Court stayed his conviction.