The Supreme Court stayed the conviction of Congress leader and ex-Member of Parliament (MP) Rahul Gandhi in the criminal defamation case involving the “why do all thieves have a Modi surname” remark. With the delay of his conviction, Rahul Gandhi’s disqualification as a Member of Parliament is also currently on hold.
The Court observed in the order as follows :
“The sentence for an offence punishable under Section 499 of the Indian Penal Code is maximum of two years of sentence or fine or both. The learned trial judge, in the order passed by him, has awarded the maximum sentence of two years. Except the admonition to the petitioner by this Court in a contempt proceeding, no other reason has been granted by the learned trial judge while imposing the maximum sentence of two years. It is to be noted that it is only on account of the maximum sentence of two years imposed by the learned trial judge that the provisions of Section 8(3) of the Representation of Peoples Act came into play. Had the sentence been a day lesser, then the provisions would not have been attracted.
Particularly when the offence was non-cognizable, bailable and compoundable, the least which was expected from the learned trial judge was to give reasons for imposing the maximum punishment.
Though the learned appellate court and the High Court have spent voluminous pages in rejecting the applications, these aspects are not seen considered“.
At the same time, the bench stated that Rahul Gandhi’s remarks lacked “good taste” and that a public figure should have been more circumspect when delivering public speeches.
In light of the wide-ranging implications of Section 8(3), which affect not only the petitioner’s rights but also the rights of the electorate that elected him in the constituency, as well as the fact that the trial court provided no justification for imposing the maximum sentence, the bench stated that it is staying the conviction. Due to the pending appeal, the bench refrained from making any observations on the merits of the case.
A three-judge bench comprised of Justices BR Gavai, PS Narasimha, and Sanjay Kumar was hearing Gandhi’s petition challenging the Gujarat High Court’s denial to stay his conviction in a criminal defamation case involving the ‘Modi thieves’ remark, which led to his disqualification from the Lok Sabha. On July 21, the apex court issued a notice regarding the Congress leader’s petition.
ARGUMENTS OF GANDHI
Senior Advocate Abhishek Manu Singhvi, representing Gandhi, argued at the outset that the complainant MLA from the Bharatiya Janata Party, Purnesh Modi, was a member of the Mod Vanika Samaj, which comprises members of other communities. According to the archives, the surname Modi is associated with numerous other castes.
He noted that only a smattering of the alleged 13 crore members of the Modi community have filed complaints alleging criminal defamation. He argued that the class of individuals with the surname Modi is not an identifiable class as defined by Sections 499 and 500 of the Criminal Code and therefore cannot initiate a defamation lawsuit.
Singhvi then emphasised the extreme rarity of a court imposing the maximum two-year sentence for criminal defamation.
“I am yet to see a non-cognizable, bailable and compoundable offence, which is not against society, which is not kidnapping, rape and murder, in which the maximum sentence is given. How can this become an offence involving moral turpitude?” Singhvi stated. He contended that the maximum sentence has the effect of silencing Gandhi for eight years, as it will disqualify him from elections as per the Representation of the People Act.
“The learned judge also talks about your criminal antecedents“, Justice Gavai asked. Singhvi replied that there is no prior conviction for Gandhi. There was one contempt case in Supreme Court in which he tendered an apology. Other cases are pending complaints filed by BJP workers.
“He is not a hardened criminal. There is no conviction in any case”, Singhvi stated. “There has to be some mutual respect in politics. I am not a criminal”, he emphasised. He also underscored that the High Court passed the order 66 days after reserving the judgment.
Singhvi then stated that a by-election would have to be called for the Wayanad constituency as a result of the conviction. “I’ve already missed two sessions of the Lok Sabha. If the Supreme Court rules against me, I will forfeit my entire term,” he stated. The senior counsel also inquired about the complainant’s interest in ensuring his disqualification, given that he should only be concerned with his conviction.
He also questioned the case’s evidence. The source of the complainant’s information regarding the speech is a WhatsApp message and a newspaper article. The complainant has failed to provide evidence of the speech. He noted that the complainant himself had petitioned the High Court to halt the trial in order to gather evidence. A year later, he himself vacates the stay, and a month later, he is convicted.
He relied on the 2018 verdict in the Lok Prahari case, which determined that a stay of conviction by the appellate court will also delay the disqualification. Hardik Patel, a former Congress member and current Bhartiya Janata Party (BJP) member, had his conviction in a criminal case stayed by the Supreme Court.
Gandhi was also represented by Rajinder Cheema, Harin Raval Senior Advocates, Tarannum Cheema, and Prasanna Advocates.
ARGUMENTS OF THE COMPLAINANT
Senior Counsel Mahesh Jethmalani stated that videos of the speech were presented to the court as evidence. The videos were corroborated by a witness who heard Gandhi’s speech during the meeting. Moreover, the speech was never prohibited.
The senior counsel quoted Gandhi’s speech as “Achchha ek chhota sa sawal, inn sab choron ka naam, Modi, Modi, Modi kaise hain…Lalit Modi, Nirav Modi…Aur thoda dhundoge toh aur saare Modi nikal aayega“
Gandhi’s intention, according to Jethmalani, was to defame the entire Modi community simply because it was the appellation of the prime minister. Gandhi stated in his Section 313 declaration before the trial court that he does not recall the speech.
Justice Gavai noted at this point that legislators who address multiple public gatherings per day may forget their speeches. Jethmalani remarked that he was a defendant facing prosecution against an abundance of evidence.
Jethmalani argued, citing a Supreme Court precedent, that ‘Modi’ was an identifiable class and that anyone with the surname ‘Modi’ has standing to submit the complaint.
The senior counsel then argued that the Representation of Peoples Act does not mention the concept of “moral turpitude” and solely states that a sentence of two years or more disqualifies a candidate.
In the 2013 Lily Thomas case, the Supreme Court invalidated Section 8(4), which permitted the suspension of disqualification pending the outcome of an appeal. He argued that the current effort to seek a stay of execution was an attempt to “reintroduce through the back door” a provision that the Supreme Court had struck down.
“Whether the fact that a constituency which elects a person goes unrepresented is a relevant factor?“
Justice Gavai asked. “Also, when you impose the maximum sentence, there have to be reasons. But there is no whisper on this by the trial court…”, Justice Gava pointed out. “You are not only affecting the right of one individual but rights of the entire constituency. So while the learned single judge says merely because one is a Member of Parliament is not a ground to give a concession, the other aspect is not touched upon. 125 pages the learned single judge has written. It makes an interesting reading“, Justice Gavai pointed out. Justice Gavai remarked that the decisions issued by “the Learned Solicitor General’s state” made for fascinating reading.
Tushar Mehta, the Solicitor General, requested that the bench refrain from making “off-the-cuff remarks” about the High Court. S stated that on occasion, the Supreme Court criticises the High Courts for failing to provide sufficient reasons; consequently, High Court judges issue detailed orders. Justice Gavai stated that they have encountered two recent High Court orders.
Jethmalani noted that the Supreme Court had reprimanded Rahul Gandhi in the contempt case after he submitted an apology and stated that this constitutes a previous conviction. He mentioned the previous contempt charge against Gandhi for falsely claiming that the Supreme Court indicted the prime minister in the Rafale case. Jethmalani noted that, while denying the Rafale review petitions, the Supreme Court cautioned Gandhi by stating, “Mr. Gandhi must be more cautious in the future.”
Singhvi intervened to clarify that the Supreme Court’s order was issued on November 14, 2019, which was after the date of the challenged address. “Had the judgement been rendered sooner, your client would have been more cautious,” said Justice Gavai.
Jethmalani stated that someone with a propensity of making hasty statements has no right to request concessions. “He has not shown any remorse in this matter either,” he said.
BACKGROUND
Rahul Gandhi, a Congress leader and former member of parliament, has been embroiled in a controversy over a remark he made at a political rally in Kolar, Karnataka, in 2019.
Purnesh Modi, a Bharatiya Janata Party MLA and former Gujarat minister, lodged a complaint under Sections 499 and 500 of the Indian Penal Code, 1860, alleging that Gandhi defamed everyone with a ‘Modi’ surname.
In February, the Gujarat High Court lifted a stay on the trial in the criminal defamation case against the former legislator. In March, a local court in the Surat district of Gujarat convicted him and sentenced him to two years in prison. Although the Court of Chief Judicial Magistrate HH Varma suspended his sentence and granted him bail in the case to file an appeal within 30 days, his conviction was not suspended, and so, the very next day, the former MP from Kerala’s Wayanad constituency was disqualified as a Lok Sabha member in accordance with Article 102(1)(e) of the Constitution read with Section 8 of the Representation of the People Act, 1951. The 1951 Act stipulates that a person is disqualified from membership in either House of Parliament or a state legislative assembly or council if they are convicted and sentenced to imprisonment for two years or more, and remain disqualified for an additional six years after their release.
After his conviction and subsequent disqualification from the Lok Sabha, Gandhi challenged his conviction in a city sessions court in Surat, along with two applications for suspension of sentence and suspension of conviction. If his second application were approved, he would be reinstated to the Lok Saba. In a further setback for the former member of parliament, the sessions court denied Rahul Gandhi’s request for a stay on his conviction in the criminal defamation case, although he was granted parole pending the outcome of his appeal.
Gandhi lodged a criminal revision application against the ruling of the sessions court. In addition to refusing to grant him interim relief, a bench of Justice Hemant Prachchhak dismissed his petition earlier this month. While rejecting Gandhi’s appeal, the single-judge bench noted that the case involved a large identifiable class, namely the ‘Modi’ community, as opposed to a single individual. The court also stated that as a senior leader of the oldest political party in India, Gandhi had a responsibility to ensure that his political activities or statements did not jeopardise the dignity and reputation of a large number of people or any identifiable class.
In addition, the high court stated that Gandhi made a deceptive statement to influence the election results and used Prime Minister Narendra Modi’s name to add drama to his speech. The high court also acknowledged the existence of ten additional defamation complaints against Gandhi, including one lodged by the grandnephew of Vinayak Savarkar in a Pune court over allegedly defamatory remarks made against Savarkar in a speech delivered at Cambridge University.
After expending all available options, the Congress leader challenged the Gujarat High Court’s decision to deny his petition for a stay of execution before the Supreme Court. The former representative has asserted, among other things, that he had no malicious intent or intent to defame the complainant.
The complainant, Purnesh Modi, has opposed a suspension of Gandhi’s conviction by filing an affidavit with the highest court. Gandhi, according to the BJP lawmaker, defamed every person with the surname ‘Modi’ and Gujarat’s ‘Modh Vanik’ caste, both of which are ‘identifiable aggregates of persons’ under Explanation 2 of Section 499 of the Indian Penal Code.
In addition, he insisted that Gandhi’s “arrogant entitlement, insensitivity to a community, and contempt for law” disqualified him from receiving any form of relief.
Gandhi responded in his most recent affidavit that the complainant was using the criminal process and provisions of the Representation of the People Act to coerce the petitioner into apologising for conduct that was not his fault. The affidavit states, “The petitioner maintains and has always maintained that he is not guilty of the offence, that the conviction is unsustainable, and that if he were required to apologise and compound the offence, he would have done so much earlier.”