Note: This article was updated at 1830 on March 24 to take note of Rahul Gandhi’s disqualification as an MP.
New Delhi: On March 23, 2023, the chief judicial magistrate, Surat, H.H. Varma, sentenced Congress MP Rahul Gandhi to two years imprisonment and also imposed a fine of Rs.15000 after convicting him for the offence of criminal defamation under Sections 499 and 500, Indian Penal Code.
The court suspended his sentence for 30 days but not his conviction, and granted him bail to enable him to move an appeal against its verdict.
On Friday, the Lok Sabha secretariat issued a notification disqualifying Gandhi as a member of parliament.
What did Rahul Gandhi say, for which he has been convicted?
During an election rally in Karnataka’s Kolar on April 13, 2019, Rahul Gandhi named three persons – the fugitive diamantaire Nirav Modi, the controversial cricket administrator Lalit Modi and Prime Minister Narendra Modi – and asked how it was that “all these thieves have the same name, Modi.” [The video of the remarks is available at 13’18’‘]:
“Accha, ek chhota sa sawaal, in sab ke naam, in sab choron ke nam, Modi Modi Modi kaise hai? Nirav Modi, Lalit Modi, Narendra Modi. Aur abhi thoda dhoondenge to aur bahut saare Modi niklenge.”
“I have a question. Why do all of them — all of these thieves — have Modi Modi Modi in their names? Nirav Modi, Lalit Modi, Narendra Modi. And if we search a bit more, many more such Modis will come out.”
A former Gujarat minister and BJP MLA, Purnesh Modi, subsequently lodged a complaint against Rahul Gandhi saying his remark had defamed the entire ‘Modi community’.
Why did the complainant himself seek a stay on the trial for over a year?
An unusual aspect of this particular defamation case is that Purnesh Modi sought a stay from the high court on Gandhi’s trial last year and was successful in delaying proceedings for nearly 12 months. Normally, it is the accused in a case who seeks to obtain a stay on proceedings.
The case was filed on April 16, 2019 and Rahul Gandhi appeared in the court of the then CJM, Surat, A.N. Dave on June 24, 2021, to record his statement in person. In March 2022, when the complainant’s request for Rahul Gandhi to be summoned again was rejected by the CJM who insisted arguments commence immediately, the complainant rushed to the high court and sought a stay on the trial’s proceedings. This was granted on March 7, 2022.
After a hiatus of 11 months, the complainant went back to the high court on February 16, 2023, seeking vacation of the stay, pleading that “sufficient evidence has come on record of the trial court and the pendency of the present matter delays the trial”. Though no new evidence had come on record since the stay and the “pendency of the matter” was entirely at his own instance, the complainant was granted the relief he sought.
Purnesh Modi’s decision to restart a trial he had himself put on hold for a year came barely a week after Rahul Gandhi had launched a sharp attack on Narendra Modi in parliament over his links to controversial businessman Gautam Adani.
The trial resumed on February 27, 2023, this time before another judge, CJM H.H. Varma.
In his arguments on March 8, 2023, Gandhi’s counsel submitted that Purnesh Modi had no locus to claim defamation as the target of the Congress leader’s impugned speech was Narendra Modi.
“In the entire complaint, there is only one allegation that is not against Narendra Modi,” the Times of India quoted Gandhi’s lawyer as arguing, which was ‘How come all [these] thieves have the same name, Modi?’. “For this too, Purnesh Modi has no right to complain as the allegations are not against any caste or community… And even if the allegations are against those with Modi surnames, then there is no association of those holding Modi surname,” the lawyer said.
Arguments concluded the following week and CJM Varma reserved judgment. On Thursday he pronounced his ‘guilty’ verdict and sentenced Gandhi to the maximum punishment of two years imprisonment.
Was the Surat judge right in proceeding against Gandhi without a preliminary inquiry?
Rahul Gandhi’s legal arguments initially focused on the key question of jurisdiction under Section 202 of the Code of Criminal Procedure, which specifies the process a court must follow if it is proceeding against someone outside its usual territorial jurisdiction.
While upholding the constitutional validity of criminal defamation (Sections 499, 500 IPC), the Supreme Court in Subramanian Swamy vs Union of India held that there is a heavy burden on the trial court judge to scrutinise the complaint from all aspects. The judge must also keep in view the language employed in Section 202 CrPC, which deals with how to proceed when the accused is resident at a place beyond the area in which the trial court exercises its jurisdiction. “Application of mind in the case of a complaint” is imperative in deciding whether the ingredients of Section 499 IPC are satisfied, it added.
Section 202 deals with the issue of process by a magistrate. As amended in 2005, this provision says that it is mandatory for a magistrate to postpone the issue of process against an accused person who is residing outside the territorial jurisdiction of the magistrate till such time he concludes an inquiry into the charges.
“Rahul Gandhi is a resident of Delhi, which is outside the jurisdiction of this court,” his lawyer submitted before the CJM on March 7, “For such an accused, the law requires the witnesses to be examined, and the matter enquired. The court is then required to give the reason on whether to issue the summons or not. No such thing was followed,” the Times of India quoted him saying.
In Vijay Dhanuka and Others v Najima Mamtaj and Others (2014), the Supreme Court has held that, it is mandatory for the magistrate to conduct an inquiry or direct an investigation before issuing process when the accused person resides beyond the territorial jurisdiction of the magistrate.
The apex court went one step further in Birla Corporation Limited v Adventz Investments and Holding Limited (2019), holding that the issuance of process should not be mechanical nor it should be made as an instrument of harassment to the accused. An issuance of process calling upon an individual to appear as an accused in a criminal case is a serious matter and if there is lack of material particulars and non-application of mind by the magistrate as to the materials, this cannot be brushed aside on the ground that it is only a procedural irregularity.
In Abhijeet Pawar v Hemant Madhukar Nimbalkar and Another (2017), the Supreme court held that if the mandatory requirement of Section 202, CrPC is not fulfilled by the magistrate before issuing process, it can direct him/her to take up the matter up afresh and pass appropriate orders in compliance with the provision.
Rahul Gandhi’s lawyers raised these questions before the CJM and in the appeal his team will file, his counsel have already indicated that one plank of appeal will be non-compliance with Section 202, CrPC.
Defamation of a group: What the Supreme Court’s guidelines say
While politicians in India often resort to making fun of names in order to score points against their opponents, Rahul Gandhi’s attempt at humour has landed him in trouble.
Explanation 2 to Section 499 IPC says that it amounts to defamation to make an imputation concerning a company or an association or collection of persons as such. However, in a key 2010 case, the Supreme Court has laid down the conditions under which a collection of persons can allege defamation.
In S. Khushboo,v Kanniammal, it ruled that though Explanation 2 is wide, the only way a collection of persons ca demonstrate the offence of defamation is if they are an identifiable body – so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community, stood defamed.
In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable.
In the Surat case, it is difficult to contend that those with the surname Modi constitute a community, which was distinct from others, and that Rahul Gandhi intended to defame such a community. In S. Khushboo, the Supreme Court held that in case a class is mentioned, the complaint cannot be entertained if such a class is indefinite. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed.
In Subramanian Swamy, the Supreme Court relied on S. Khushboo and noted that the community allegedly defamed must be a determinate and definite body. “It also lays accent on identifiable body and identity of the collection of persons. It also significantly states about the test of precision so that the collection of persons have a distinction. Thus, it is fallacious to contend that it is totally vague and can, by its inclusiveness, cover an indefinite multitude”, the court held.
Thus, the court observed that “where a writing weighs against mankind in general, or against a particular order of men, e.g., men of gown, it is no libel. It must descend to particulars and individuals to make it a libel. Thus, the accentuation is on ‘particulars’,” the bench held.
Had Rahul Gandhi asked why these thieves all wear the gown, it can’t be libel. Similarly, the reference he made to the surname of three individuals – none of whom has alleged defamation – without elaboration of particulars, cannot constitute defamation, if Subramanian Swamy is an indication.
Can Rahul Gandhi be disqualified as a Member of the Lok Sabha following his conviction?
In January this year, the Lok Sabha MP from Lakshadweep, Mohammad Faizal of the Nationalist Congress Party, was disqualified after he was sentenced to 10 years imprisonment by a district court in an attempt to murder case. The Lok Sabha Ethics Committee decided to strip Faizal of his membership from the date of his conviction, i.e., January 11, 2023, in terms of the provisions of Article 102(1)(e) of the Constitution read with Section 8 of the Representation of the People Act, 1951. The Ethics Committee decided this after receiving communication from the district and sessions judge, Kavaratti, informing them about Faizal’s conviction.
This disqualification is now de facto on hold after the Kerala High Court suspended the conviction and sentence of Faizal, after his disqualification. In the case of Rahul Gandhi, the Surat court itself had suspended his sentence, to enable him to appeal. Under Section 8(3) of the R.P.Act, an MP convicted and sentenced for two or more years invites disqualification. Although Faizal stands disqualified, the Election Commission withheld the Lakshadweep Lok Sabha by poll after the high court suspended his conviction and sentence. Although Faizal’s disqualification has ceased to have effect following the high court’s suspension of his conviction, there has been no formal revocation of his disqualification by the Lok Sabha speaker.
The question of the procedure by which Rahul Gandhi may be disqualified from the Lok Sabha arises in view of the Supreme Court’s 2013 judgment in Lily Thomas vs Union of India, declaring sub-section (4) of Section 8 of RPA unconstitutional. Section 8(4) of the RPA said that disqualifications take effect only “after three months have elapsed” from the date of any conviction if, during that interregnum, the MP or MLA has not filed an appeal against the conviction or the sentence before a higher court. Section 8(4) extended immunity from disqualification even if the court had not disposed of such an appeal during that period of three months.
In Lok Prahari v Election Commission of India (2018), the Supreme Court held that once a conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect.
The effect of Lily Thomas and Lok Prahari will, therefore, be that the Ethics Committee of the Lok Sabha can take cognisance of Rahul Gandhi’s conviction and proceed to disqualify him from the Lok Sabha once the Surat court sends them a communication to that effect.
Presumaby this is the basis for the Lok Sabha secretariat’s communication on March 24.
However, if and when an appellate court stays his conviction and sentence, the disqualification will cease to have effect.
The question to ask, however, is whether the Lok Sabha is right to disqualify Rahul Gandhi hastily without awaiting the outcome of his plea for stay of his conviction. Is the Lok Sabha speaker right to ignore the Surat court’s suspension of his sentence, on the grounds that in Lily Thomas, a conviction which carries a sentence of two years and above is sufficient to attract disqualification?
In 2013, the United Progressive Alliance government had tried to circumvent the Lily Thomas ruling by enacting an ordinance. Ironically, Rahul Gandhi tore a copy of the ordinance at a press conference to express his protest against it, acutely embarrassing – and weakening – the then prime minister, Manmohan Singh.
An additional question is the procedure for disqualification of an MP specified in Article 103 of the Constitution:
103. Decision on questions as to disqualifications of members
(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall be referred for the decision of the President and his decision shall be final
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion
Since Gandhi’s disqualification is pursuant to Article 102(1)(e) – “disqualified by or under any law made by Parliament” – it is the president of India who must sign off on the disqualification, on the advice of the Election Commission.
It is not clear that this constitutional provision has been complied with.
Note: This article was updated at 1830 on March 24 to take note of Rahul Gandhi’s disqualification as an MP.