Sanjay Hegde

According to an apocryphal story from the erstwhile Soviet Union, a peasant stood in the market square and shouted that the minister for agriculture was a fool. He was sentenced to 10 years and one month of imprisonment. The one month was for defaming the minister and the 10 years were for revealing a state secret. The lesser penalty was for the actual act, the greater penalty was for the impact.

Looking at the Rahul Gandhi defamation saga, it does appear that the criminal law of defamation was weaponised for the greater impact of ridding Parliament of a prominent opposition leader.

Section 8[3] of the Representation of the People Act says: “A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.”

In the Lily Thomas case, the Supreme Court had ruled that “…once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls vacant…”.

Thus, for parliamentarians, any conviction with a sentence of two years or more entails not only imprisonment, but a further exile for six years thereafter. A maximum sentence of two years is rarely given upon conviction for defamation, wherein people are often let off with an admonition or a fine.

When the magistrate in Surat awarded Rahul Gandhi the maximum penalty, it must be assumed that he intended such a sentence to have other consequences as well. For a period of 30 days, the magistrate stayed the sentence of imprisonment, but the guillotine of disqualification has fallen on Rahul Gandhi’s membership of Parliament.

Law of criminal defamation

The law of criminal defamation was not intended to have political consequences. It has been in the Indian Penal Code (IPC) since its inception in the times of Macaulay. The basic logic of making defamation a criminal offence was to prevent people from fighting in the streets to protect their honour or that of their loved ones. The law dates back to a time when duels were not unknown and came with their attendant fatalities. The draftsmen of the law preferred to shift those duels to the criminal courts, with a possibility of imprisonment up to two years.

When the Constitution of India came into being, the right to freedom of speech and expression was made subject to the laws of defamation and contempt of court, along with a few exceptions. Free India ought to have done away with criminal defamation and continued with defamation as a civil law that envisages compensation in terms of damages. Payment of damages in cases of civil defamation are not unknown in the world. In fact, heavy damages are often a way to maintain societal balance.

For example, right now in the US, Dominion Voting Systems is pursuing a civil defamation case against Fox Network and other pro-Trump media for disparaging its voting machines. There is no question of imprisoning someone in the US today for defamation. In fact, India is one of the rare countries where the criminal law of defamation continues.

The Subramanian Swamy case

The constitutionality of criminal defamation was challenged in the Supreme Court, but in 2015, in the Subramanian Swamy case, the court upheld Sections 499 and 500 of the IPC, with the argument that the provision had existed in the statute books for a long time. It was also argued that even the makers of the Constitution had made an exception in the freedom of speech provisions in favour of defamation laws.

The court ruled in pertinent part….“One cannot be unmindful that the right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context, criminal defamation, which is in existence in the form of Sections 499 and 500 [of the ] IPC, is not a restriction on free speech that can be characterised as disproportionate.”

It added: “Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves the social interest. Thus, we are unable to accept that provisions relating to criminal defamation are not saved by doctrine of proportionality because it determines a limit which is not impermissible within the criterion of reasonable restriction.”

Ironically, one of the many petitioners in the Subramanian Swamy case was Rahul Gandhi himself.

The Rahul Gandhi case

Coming to the present case in Surat, it arose out of a speech in Kolar in Karnataka where Rahul Gandhi reportedly said: “…One small question, how are the names of all these thieves ‘Modi, Modi, Modi’… Nirav Modi, Lalit Modi, Narendra Modi….”

However, none of the three named Modis filed a criminal complaint or a civil suit for defamation on being called thieves.  A former Gujarat Minister and current MLA,  Purnendu Modi, filed a criminal complaint in a Surat court saying that all Modis had been defamed.

His complaint was based on the second explanation to Section 499 of the IPC, which reads: “It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.”

Now, do all people with the Modi surname really qualify as a “collection of persons” as such? There is a precedent in Sahib Singh Mehra, a 1965 case in which allegations of corruption were made against public prosecutors in the city of Aligarh.

The Supreme Court held: “The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can be considered to be such a collection of persons as is contemplated by Explanation 2. The language of Explanation 2 is general and any collection of persons would be covered by it. Of course, that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been defamed, as distinguished from the rest of the community.”

It added: “The prosecuting staff of Aligarh or, as a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group or collection of persons. There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the government of Uttar Pradesh. Within this general group of public prosecutors of UP. there is again an identifiable group of prosecuting staff, consisting of public prosecutors and assistant public prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 and could, therefore, be the subject of defamation.”

The court held: “We have not been referred to any case relating to Section 499 IPC in support of the contention for the appellant that the public prosecutor and assistant public prosecutors at Aligarh could not form such a body of persons as would be covered by Explanation 2 to Section 499 IPC.”

In a later decision in 2010 in Khushboo Sundar, the court reviewed the earlier case law, including a 1972 case of G. Narasimhan involving The Hindu newspaper, which had said: “…Undoubtedly, the explanation is wide but in order to demonstrate the offence of defamation such a collection of persons must be 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 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…”

The court went on to suggest: “In fact, it is the reputation of an individual person which must be in question and only such a person can claim to have ‘a legal peg for a justifiable claim to hang on’.”

“Collection of persons”

I submit that people with an identical surname do not form a “collection of persons” as is contemplated under the criminal law of defamation. Sir Homi Modi, Lala Gujar Mal Modi, Syed Modi, Zia Modi, and Purnendu Modi, while being “a collection of persons”, are only an indefinite agglomeration of people with a common surname. They are not a homogeneous company or association of the type required under Explanation 2 of Section 499.

If the logic of the Surat court were to be upheld, then Manmohan Singh, Ranveer Singh, Rajnath Singh, Yuvraj Singh, Amritpal Singh, and Tavleen Singh would all be defamed by stories told about Santa Singh and Banta Singh.

It is precisely to prevent such abuse of the law that the Supreme Court in Subramaniam Swamy required magistrates to be cautious in summoning people who resided outside the territorial jurisdiction of the court to face trial in defamation cases.

The judgment held: “…Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.”

It added: “…We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the magistracy to scrutinise the complaint from all aspects. The magistrate has also to keep in view the language employed in Section 202 [of the] CrPC [Code of Criminal Procedure] which stipulates about the residence of the accused at a place beyond the area in which the magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 [of the IPC] are satisfied. Application of mind in the case of complaint is imperative.”

This cautionary exercise ordained by the Supreme Court appears to have been given a go-by in the Surat case.

I have no doubt that Rahul Gandhi’s legal team will take this up with the appellate courts. The flaws detailed above will be but a few among the many grounds of appeal that will be urged. But in the appeal process, Rahul Gandhi needs more than a stay on the sentence of imprisonment. He needs the appellate court to stay the conviction itself.

In Lily Thomas, the Supreme Court also held that “…the disqualification under sub-section (1), (2), or (3) of Section 8 of the 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.”

Thus, the route back to the Lok Sabha runs through the appropriate appellate court in Gujarat.

Much also depends on what the Election Commission of India now decides to do. If it were to hurriedly call for a byelection in Wayanad, Rahul Gandhi’s Lok Sabha constituency, it would be anomalous if, at a later stage, the conviction against him is stayed or averted. If such a situation arises, then the currently disqualified member would be within his rights to again stake his claim to the seat. Anybody else elected in his place might have to vacate the seat. Therefore, it is incumbent on the Election Commission to not take a hasty decision without considering its wide-ranging and long-term effects.

The author is a senior advocate at the Supreme Court of India. The views are personal.

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