4 Aug 2023 8:11 AM GMT
The Supreme Court on Friday stayed the conviction of Congress leader and former Member of Parliament (MP) Rahul Gandhi in the criminal defamation case over the "why all thieves have Modi surname" remark. With the stay of his conviction, Rahul Gandhi's disqualification as MP also now remains in abeyance.The Court observed in the order as follows :"The sentence for an offence punishable...
The Supreme Court on Friday stayed the conviction of Congress leader and former Member of Parliament (MP) Rahul Gandhi in the criminal defamation case over the "why all thieves have Modi surname" remark. With the stay of his conviction, Rahul Gandhi's disqualification as MP also now remains in abeyance.
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 observed that the utterances of Rahul Gandhi were not in "good taste" and said that a person in public life ought to have been more careful while making public speeches.
Considering the wide ramifications of the Section 8(3) affecting not only the right of the petitioner but also the rights of the electorate which elected him in the constituency and also the fact that no reason has been assigned by the trial court to award the maximum sentence, the bench said that it is staying the conviction. The bench refrained from making any observations on the merits of the matter considering the pendency of the appeal.
A three-judge bench of Justices BR Gavai, PS Narasimha, and Sanjay Kumar was hearing Gandhi’s plea challenging the Gujarat High Court's refusal to stay his conviction in a criminal defamation case over 'Modi thieves' remark, which resulted in his disqualification from the Lok Sabha. The apex court issued notice in the Congress leader’s plea last month, on July 21.
Arguments of Gandhi
Senior Advocate Abhishek Manu Singhvi, appearing for Gandhi, at the outset submitted that the complainant Bharatiya Janata Party MLA Purnesh Modi belonged to the Modh Vanika Samaj which includes other communities as well. The records indicate that the Modi surname falls under many other castes.
He pointed out that of the 13 crore members said to be in the Modi community, only a handful of BJP members have filed complaints alleging criminal defamation. He argued that the class of persons sharing Modi surname is not an identifiable class within the meaning of Section 499/500 IPC who can file a defamation complaint.
Singhvi then highlighted that the Court awarding the maximum sentence of two years for criminal defamation is an extreme rarity.
"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 the consequence of the conviction is that a bye-election will have to be notified for the Wayanad constituency. "I have already lost two sessions (of Lok Sabha). If the Supreme Court says no, I will lose the entire term", he said. The senior counsel also asked what is the complainant's interest in ensuring his disqualification as his concern ought to be only the conviction.
He also questioned the evidence in the case. The complainant has not heard the speech first hand and his source of information is a WhatsApp message and a newspaper article. The complainant has not proved the speech. He pointed out that the complainant himself had approached the High Court to stay the trial saying that he wanted to get evidence. One year later, he himself gets the stay vacated and a month later, the conviction comes.
He placed reliance on the 2018 judgment in the Lok Prahari case which held that stay of conviction by the appellate court will stay the disqualification too. Reference was also made to the Supreme Court's order staying the conviction of former Congress and present BJP member Hardik Patel in a criminal case.
Rajinder Cheema, Prashanto Chandra Sen, Harin Raval Senior Advocates, Tarannum Cheema, and S. Prasanna Advocates also appeared for Gandhi.
Arguments of the complainant
Senior Advocate Mahesh Jethmalani said that the videos of the speech were produced as evidence before the Court. A person who heard Gandhi's speech in the meeting was produced as a witness who corroborated the videos. Also, the speech was never denied.
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"
Jethmalani said that Gandhi's intention was to defame the entire Modi community just because it was the surname of the Prime Minister. In his Section 313 statement before the trial court, Gandhi said that he does not remember the speech.
Justice Gavai at this juncture observed that politicians, who address several public meetings a day, may not remember their speeches. Jethmalani pointed out that he was an accused who was facing trial against a wealth of evidence.
Referring to a Supreme Court precedent, Jethmalani argued that 'Modi' was an identifiable class and every person having the 'Modi' surname has the locus standi to file the complaint.
Next, the senior counsel argued that the Representation of Peoples Act does not refer to the concept of "moral turpitude" and merely says that a sentence of two years or more will attract disqualification. In the 2013 Lily Thomas case, the Supreme Court struck down Section 8(4), which provided for keeping the disqualification in abeyance during the pendency of the appeal. He argued that the present attempt to seek a stay on the conviction was an attempt to "bring through the backdoor" a provision which was struck down by the Supreme Court.
"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 Gavai 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 also commented that the judgments coming from "the Learned Solicitor General's state" make interesting reading.
Solicitor General Tushar Mehta requested the bench to not make "off-the-cuff remarks" on the High Court. SG said that sometimes, the Supreme Court criticises High Courts for not giving adequate reasons and hence, High Court judges pass detailed orders. Justice Gavai said that they have come across two recent orders by the High Court.
Jethmalani pointed out that the Supreme Court had admonished Rahul Gandhi in the contempt case after he tendered an apology and said that it amounts to a prior conviction. He referred to the previous contempt case against Gandhi for wrongfully saying that Supreme Court indicted Prime Minister in the Rafale case. Jethmalani pointed out that while dismissing the Rafale review petitions, the Supreme Court had a word of warning for Gandhi by saying, "Certainly Mr. Gandhi needs to be more careful in future".
Singhvi interjected to clarify that the Supreme Court's order came on November 14, 2019, after the date of the impugned speech. "Had the judgment come earlier, your client would have been more careful", Justice Gavai said.
Jethmalani said that a person who has a history of making rash speeches has no right to seek concessions. "He has not shown any contrition in the present matter too", he said.
Congress leader and former MP Rahul Gandhi has been embroiled in a controversy over his ‘why all thieves share the Modi surname’ remark dating back to a political rally at Karnataka’s Kolar in 2019. Accusing Gandhi of defaming everyone with a ‘Modi’ surname, Bharatiya Janata Party MLA and former Gujarat minister Purnesh Modi filed a complaint under Sections 499 and 500 of the Indian Penal Code, 1860 over this alleged remark.
One month after the Gujarat High Court vacated a stay on the trial in the criminal defamation case against the former legislator in February, a local court in Surat district of Gujarat handed him a conviction and a two years’ jail sentence in March. Although the Court of Chief Judicial Magistrate HH Varma suspended his sentence and granted him bail in the case to move an appeal within 30 days, his conviction was not suspended, and therefore, on the very next day, the former MP representing Kerala’s Wayanad constituency was disqualified as a Lok Sabha member in terms of Article 102(1)(e) of the Constitution read with Section 8 of the Representation of the People Act, 1951. The 1951 Act provides that a person would be disqualified from their membership of either House of the Parliament or the state legislative assembly or council if convicted and sentenced to imprisonment for two years or more and shall continue to be disqualified for a further period of six years after their release.
After his conviction and subsequent disqualification from the Lok Sabha, Gandhi moved an appeal in a city sessions court in Surat challenging his conviction, along with two applications – one for suspension of sentence, and another for suspension of conviction. If his second application were allowed, his membership of the Lok Sabha would be restored. However, in another setback for the former MP, the sessions court dismissed Rahul Gandhi’s application seeking a stay on his conviction in the criminal defamation case, although he was granted bail till the court disposed of his appeal.
Against the ruling of the sessions court, Gandhi filed a criminal revision application. Not only did a bench of Justice Hemant Prachchhak refuse to grant him interim relief, but also ultimately dismissed his petition earlier this month. While rejecting Gandhi’s plea, the single-judge bench observed that the case concerned a large identifiable class, i.e., the ‘Modi’ community, and not just an individual. The court also said that as a senior leader of the oldest political party in India, Gandhi was vested with a duty to ensure that the dignity and reputation of a large number of persons or any identifiable class was not ‘jeopardised’ due to his political activities or utterances.
The high court further said that Gandhi made a false statement to affect the poll results and used Prime Minister Narendra Modi’s name only to add sensation to his speech. Besides this, the high court acknowledged the existence of 10 additional defamation complaints against Gandhi, including one filed by the grandnephew of Vinayak Savarkar in a Pune court over allegedly defamatory comments made against Savarkar in a speech delivered at Cambridge University.
Finally, after exhausting all his remedies, the Congress leader moved the Supreme Court challenging the Gujarat High Court’s decision to decline his plea for a stay on his conviction. The former MP has, inter alia, maintained that he had no mala fide intention nor any intent to defame the complainant.
However, the complainant, Purnesh Modi, has filed an affidavit in the top court opposing a stay of Gandhi’s conviction. The BJP legislator has asserted that Gandhi defamed every person having the surname ‘Modi’ and in particular Gujarat’s ‘Modh Vanik’ caste, both being ‘identifiable collections of persons’ within the meaning of Explanation 2 appended to Section 499 of the Indian Penal Code. Further, he stressed that Gandhi had not shown contrition, even in the face of criminal charges, and insisted that his “arrogant entitlement, insensitivity to a community, and contempt for law” should disentitle him for any relief.
In his latest affidavit, Gandhi replied that the complainant was leveraging the criminal process and the provisions of the Representation of the People Act to arm-twist the petitioner into apologising for no fault of his. The affidavit states, “The petitioner maintains and has always maintained that he is not guilty of offence and that the conviction is unsustainable and if he had to apologise and compound the offence, he would have done it much earlier.”
Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. | Special Leave Petition (Criminal) No. 8644 of 2023
Citation : 2023 LiveLaw (SC) 598
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