The Gujarat High Court verdict on Rahul Gandhi’s criminal revision petition raises pertinent questions on defamation, disqualification and electoral representation law. The High Court was deciding on an application challenging the refusal of the Sessions Court to suspend the order of conviction against Mr. Gandhi under Section 389 of the Criminal Procedure Code (CrPC). The Court ultimately denied relief to the petitioner relying on the principle that a stay of conviction is not a rule but an exception to be resorted to in rare cases.
The verdict that this case does not fall in the category of such rare cases is central to the animated debate on this issue.
Speech and reputation
The Constitution of India under Article 19(2) had declared “defamation” as one among the exceptions to free speech which was thereby validated under Sections 499 and 500 (dealing with the definition and punishment of defamation cases) of the Indian Penal Code (IPC). One is accused of criminal defamation when an imputation is made with the intention to harm, or having reason to believe that it will harm, the reputation of a person. In criminal defamation, the actual harm inflicted or suffering caused is not a condition to constitute offence as intention or knowledge is sufficient.
The comment by Mr. Gandhi, “why all thieves have Modi surname” is found penal under Section 499 that makes defamatory an imputation concerning “a company or an association or collection of persons as such.” The applicability of the expression “collection of persons” to Mr. Gandhi’s remark is the fulcrum of the case. The Magistrate Court was of the opinion that people with the surname Modi or belonging to the Modi community constitute an identifiable class and pronounced the accused guilty with maximum possible sentence.
Earlier judgments on defamation
In one of its pioneering pronouncements on defamation law, the Supreme Court in Sahib Singh Mehra versus State of Uttar Pradesh (1965) relied on the criteria of identifiability and definitiveness as determinants to fall in the category of a “collection of persons”, in order to rule that public prosecutors and assistant public prosecutors at Aligarh constitute a definite and identifiable category.
Further, the judgment of the Allahabad High Court in Tek Chand Gupta versus R. K. Karanjia and Ors. (1967) stated that the Rashtriya Swayam Sevak Sangh (RSS) having a constitution for itself establishes it as an association or collection of persons which is not indefinite and unidentifiable. This definition was affirmed by the Supreme Court in G. Narasimhan versus T. V. Chokkappa (1972), wherein it quashed complaints, against office bearers of certain newspapers including The Hindu, which alleged that newspaper reports on a resolution passed in a conference organised by the Dravida Kazhagam in 1971 was defamatory. The Court said that the conference was not a determinate and identifiable body to be considered a “collection of persons”.
In the light of these precedents, it would be interesting to see whether the apex court would view people bearing the surname Modi as an identifiable or definite class in order to be called a “group of persons”.
‘Purity in politics’
The categoric refusal of the Gujarat High Court to grant a stay on the conviction was also premised on the “need of the hour to have purity in politics”. This observation seems to have gone against the view of the Kerala High Court which recently stayed the conviction of Mohammed Faizal, the MP of Lakshadweep, under Section 307 of the IPC (attempt to murder), after taking note of the representative nature of his office. The Court held that “on consideration of various legal and other circumstances and special features arising out of this case, this court is of the view that the case of the second petitioner [the MP] falls within the category of rare and exceptional circumstances. The ramifications of not suspending the conviction are enormous.” Interestingly, the Supreme Court refused to stay the order of the Kerala High Court in Mr. Faizal’s case when the UT administration came on appeal. The term of sentence imposed in this case was ten years rigorous imprisonment whereas in the defamation case, the sentence is for two years.
The concurrent views held by the Sessions Court and the Gujarat High Court have cast a shadow of uncertainty over the parliamentary membership of Mr. Gandhi. It is germane to note that the Supreme Court in a plethora of judgments had well chiselled the jurisprudence on suspending an order of conviction. A three Judge bench in Rama Narang versus Ramesh Narang & Ors. (1995) held that “in certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order ‘for reasons to be recorded by it in writing’.”
Relying on this judgment, the Supreme Court in Navjot Singh Sidhu versus State Of Punjab & Anr (2007), suspended the order of conviction to enable the cricketer turned politician to contest the election. Even in Lily Thomas versus Union of India (2013), through which Section 8 (4) of the Representation of People Act (1951) was struck down, the Supreme Court rebutted in explicit terms the concern that the disqualified legislator would become helpless by quoting from the Rama Narang judgment (1995) that the power to stay the order of conviction would remain unscathed.
However, the Supreme Court has been reluctant to stay convictions in corruption cases as was seen in State of Tamil Nadu versus A. Jaganathan (1996) and K.C. Sareen versus C.B.I., Chandigarh (2001) as the court felt that the convicted person in such cases should be kept under the disability of conviction. But these decisions are of no applicability to defamation cases which are non-cognisable, bailable and compoundable. Even the Representation of People Act, 1951, differentiates the gradients of criminality for incurring disqualification by classifying various categories of offences. The offence of defamation steps in only in cases of maximum sentence and, hence may deserve differential treatment.
The disqualified MP is reportedly approaching the Supreme Court challenging the order passed by the Gujarat High Court in the revision petition. When the High Court decides during a revisional stage a challenge against the appeal court order on an application during the pendency of the appeal, the Supreme Court usually does not interfere. But amalgamating the principles of law as declared by the Supreme Court in various cases, it is left to the top Court to grant indulgence to stay the conviction in this particular case on defamation and disqualification by employing its sweeping power to do substantive justice under Article 136. However, the final decision of the sessions court in the pending criminal appeal would hang like the sword of Damocles over the restored membership of Mr. Gandhi as an adverse decision puts him back to square one anytime afterwards.
The implication of this is long lasting as the conviction entails a six year disqualification from contesting the elections which will have grave ramifications.
Abhilash M.R is a lawyer practising in the Supreme Court