Rahul Gandhi’s Conviction And Disqualification Are On Questionable Grounds
The conviction of former Congress Member of Lok Sabha, Rahul Gandhi by a Surat court for criminal defamation (Purnesh Modi vs Rahul Gandhi) has led to a debate on whether what he said, in the course of an election speech in 2019, constitutes an offence under the law. The constitutional validity of Sections 499 and 500 of the Indian Penal Code and Sections 199(1) and 199(4) of the CrPC was...
The conviction of former Congress Member of Lok Sabha, Rahul Gandhi by a Surat court for criminal defamation (Purnesh Modi vs Rahul Gandhi) has led to a debate on whether what he said, in the course of an election speech in 2019, constitutes an offence under the law.
The constitutional validity of Sections 499 and 500 of the Indian Penal Code and Sections 199(1) and 199(4) of the CrPC was upheld in Subramanian Swamy vs Union of India in 2016 by a two-Judge bench of the Supreme Court. In this judgment, the court went into the impact of Article 19(1)(a) read with clause (2) thereof on Sections 499 and 500 of IPC.
The bench held that reputation being an inherent component of Article 21, it should not be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas, the bench reasoned. In fact, it is a control regard being had to another person’s right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck, the bench held. Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech, the bench explained. (Paragraph 140).
Therefore, it makes sense to examine the right of the complainant in Purnesh Modi to drag Rahul Gandhi to court alleging defamation, as a result of his speech asking whether it is just a coincidence that all thieves have the Modi surname, and if one searched, there could be more than the three names, which he mentioned.
But what the Supreme Court further said in Subramanian Swamy, regarding the applicability of law in particular cases, is significant.
In Paragraph 143, the court cited the previous judgment of the court in Shreya Singhal case, which struck down Section 66-A of the Information Technology Act as unconstitutional. In Shreya Singhal, another two-Judge bench had held that for something to be defamatory, injury to reputation is a basic ingredient. The bench added that something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation.
The bench in Subramanian Swamy then went into the question when exactly a grossly offensive or annoying or inconvenient speech can affect one’s reputation. In Paragraph 165, it said to constitute the offence, there has to be imputation and it must have made in the manner as provided in the provision (Section 499 IPC) with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence, the bench held.
In other words, the complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the complainant. The bench, relying on case law, suggested that it is not necessary to establish that the complainant actually suffered directly or indirectly from the imputation alleged. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant.
It is not clear whether the Surat court satisfied itself that Rahul Gandhi intended or knew or had reason to believe that his imputation would harm the reputation of the complainant in this case. The facts suggest, however, that this test laid down in Subramanian Swamy, would not have been satisfied in Purnesh Modi.
It is Explanation 2 to Section 499, which is relevant in Purnesh Modi. It deals with imputation concerning a company or an association or collection of persons as such. The Supreme Court made it clear in Subramanaian Swamy that in this Explanation, emphasis is laid on the concept of identifiability and definitiveness as regards collection of persons (Paragraph 170). Citing previously decided cases, the bench held that in a case where Explanation 2 is resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Thus the bench was categorical that where a writing (an imputation) 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, it held. (Paragraph 171).
The bench relied on with approval, the previous judgment of the Court in S.Khushboo vs Kanniammal (2010). In this case, as many as 23 criminal complaints were filed against the petitioner for the offences under Sections 499, 500 and 505 of ther IPC for stating that the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for societal acceptance of the same. However, she had also qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases. In this case, the complainant, a married woman, who was the Treasurer of a district unit of the Pattali Makkal Katchi, a political party, alleged that Khushboo’s views brought great shame on her since it had suggested that all women of her profile had engaged in premarital sex, and that as a result, a large section of women from Tamil Nadu was being looked down upon with disrespect and contempt.
The Supreme Court held in this case that there was no prima facie case of defamation. The Court held that there was neither any intent on part of the appellant, Khushboo to cause harm to the reputation of the complainants nor could it discern any actual harm done to their reputation. In short, both the elements i.e. mens rea and actus reus were missing, the bench pointed out.
The court further noted that hers was a rather general endorsement of premarital sex and were not directed at any individual or even at a company or an association or collection of persons.
The bench also could not find any direct attack in her so-called views (which she denied later) on the reputation of anyone in particular. Instead, the purported remarks, the bench interpreted, were in the nature of rhetorical questions wherein it was asked if people in Tamil Nadu were not aware of the incidence of sex. The Court reasoned that she did not suggest that all women in Tamil Nadu had engaged in premarital sex. It was a clear case of the complainants reading in too much into the appellant’s remarks, the bench suggested.
More important, the bench further reasoned that the complainants could not be properly described as “persons aggrieved” within the meaning of Section 199(1)(b) CrPC. There was no specific legal injury caused to any of the complainants since the appellant’s remarks were not directed at any individual or a readily identifiable group of people, the bench held.
The parallel with the facts in Purnesh Modi is obvious. Those with the surname, Modi, - who allegedly suffered an injury to their reputation as a result of Rahul Gandhi’s remark - cannot constitute a readily identifiable group of people. Rahul Gandhi’s remark was not directed at the complainant in this case; therefore, he could not be described as the “person aggrieved”.
In S.Khushboo, the Supreme Court held that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an “aggrieved person”, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. The bench was categorical that 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. The bench added: “In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed”.
It is not clear how in Purnesh Modi, the court found that those with the surname Modi constitute a class. In Paragraph 172 of Subramanian Swamy, the Supreme Court clearly laid stress on determinate and definite body - an identifiable body and identity of collection of persons. The bench also held that the S.Khushboo judgment states about the test of precision so that the collection of persons have a distinction. It observed: “Thus, it is fallacious to contend that it is totally vague and can, by its inclusiveness, cover an indefinite multitude.”
As in S.Khushboo case, a rhetorical question posed by the accused was made the subject of the complaint in the Surat case as having injured the reputation of the complainant, who was not intended as a target of his remark, by the accused. The complainant’s reliance on the imaginary collection of persons with Modi as their surnames, also cannot stand strict legal scrutiny.
In Paragraph 189 of S.Subramanian Swamy, the bench stated that “the person aggrieved” mentioned in Section 199 CrPC, is to be determined by the courts in each case according to the fact situation. Therefore, it refused to accept the submission that it can include any and everyone as a “person aggrieved” as too spacious.
In Paragraph 197, the bench held that the Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the resident of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. It is not clear whether in Purnesh Modi, the court applied its mind to satisfy itself to comply with this stipulation.
Disqualification and its aftermath
With the Lok Sabha Secretariat issuing a notification on Friday disqualifying Rahul Gandhi as a Lok Sabha Member from Wayanad, following his conviction in Purnesh Modi by the Chief Judicial Magistrate’s court in Surat, the debate has also focussed on the question whether it was correct to do so, especially when the court had suspended the sentence imposed on him, to enable him to appeal against it within 30 days.
Section 8(3) of the Representation of the People Act says that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified. As Rahul Gandhi has been sentenced for two years in the Surat case, Section 8(3) is surely attracted.
Can it be argued that for the purposes of Section 8(3), it is the sentence alone which is relevant, and if there is a suspension of the sentence, there is a suspension of the disqualification? In B.R.Kapur vs State of Tamil Nadu,(2001) the then Chief Minister of Tamil Nadu, J. Jayalalithaa’s sentence had been suspended by the Madras High Court. Her counsel argued before the Supreme Court that the High Court’s suspension of her sentence was tantamount to the suspension of the convictions against her.
The Supreme Court answered this question in the context of Section 389 of the CrPC, under which an appellate court may order that the execution of the sentence or order appealed against be suspended. The court held that it is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of the appeal. The court reasoned that the suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The court thus held that the suspension of the execution of the sentences does not remove the disqualification against the second respondent (Jayalalithaa). The court further made it clear that the Madras High Court had erroneously termed the suspension of the execution of the sentences as the suspension of the sentence itself.
The Supreme Court, in both Lily Thomas (2013) and Lok Prahari (2018), held that it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. In Lok Prahari, the Supreme Court held that the disqualification under Sections (1)(2) or (3) of Section 8 of the R.P.Act will not operate from the date of order of stay of conviction passed by the appellate court under Section 389 of the Code or the High Court under Section 482 of the Code.
In Purnesh Modi, the suspension of Rahul Gandhi’s sentence was ordered by the trial court itself. Although the Supreme Court’s rulings in B.R.Kapur, Lily Thomas and Lok Prahari were in the context of Section 389 of the Code dealing with the jurisdiction of the appellate courts, it is reasonable to suggest that the same principles would apply to Purnesh Modi, as the conviction of Rahul Gandhi remained, thus attracting his disqualification from the Lok Sabha. Needless to add, once the appellate court suspends Rahul Gandhi’s conviction in Purnesh Modi, his disqualification from Lok Sabha will cease to operate.
Supreme Court’s strictures in Azam Khan’s disqualification case
Having said that, however, the speed with which Lok Sabha secretariat disqualified Rahul Gandhi is questionable. In the case of disqualification of Samajwadi Party leader, Azam Khan by the Uttar Pradesh legislative assembly, the Supreme Court bench headed by the Chief Justice of India, D.Y.Chandrachud, on November 9 last year, was critical of the speed with which he was disqualified by the assembly. Referring to some other cases where disqualification of lawmakers were done belatedly, the bench said that “you cannot pick and choose people” and favoured granting an opportunity to Khan to seek legal remedy.
More important, the Supreme Court bench was clear that Azam Khan should have been granted an opportunity to avail legal remedy of appeal to seek stay on the conviction to save himself from disqualification. The bench was prima facie of the view that the stay, if any, on the conviction by an appellate court would be effective from the date of conviction in the trial court and as a result the disqualification becomes inoperative.
Azam Khan was convicted in a hate speech case on October 27 last year, and on the following day, the state assembly declared his seat vacant.