By Satyaki Chakraborty
There are at least ten valid legal reasons for challenging the conviction of the Congress leader Rahul Gandhi by the Surat Court as a consequence of which the Wayanad member of Lok Sabha was disqualified by the Lok Sabha secretariat on March 23 this year. The former MP’s lawyer Kirit Panwala is filing the appeal against the conviction on the basis of those reasons shortly, according to The Leaflet.
On March 23, 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 conviction and the consequent disqualification of the membership has united all the opposition parties against the Narendra Modi Government and the BJP. Already fourteen major p opposition parties have sent a petition to the Supreme Court seeking the intervention of the apex judicial body to the blatant use of the central agencies by the Modi government a against the opposition leaders in the interests of the ruling party. The Supreme Court is set to hear the petition on April 5.
Rahul’s lawyer Mr. Panwala has already listed ten reasons citing which he will seek stay on the conviction of Rahul Gandhi which includes two years in jail. The CJM allowed Rahul Gandhi to appeal against the conviction within a month. Accordingly, the Rahul lawyer is filing the appeal within the stipulated period- by April 22 this year. The immediate fate of the conviction depends on the decision of the Surat court on this appeal but if it is not stayed, Rahul Gandhi can approach higher court also for relief.
According to Mr. Panwala, 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).
Further, 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.
Rahul’s lawyer’s point, according to The Leaflet is that 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.
Further, 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.
Another important argument is that 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.
Further, 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 Kazhagam was not a definite and determinate body within the meaning of explanation 2 of Section 499 of the IPC.
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 this week , over two months after the Kerala High Court stay on his conviction. So there are enough grounds for giving stay on the conviction of the Congress leader Rahul Gandhi. (IPA Service)
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