It appears that Rahul Gandhi was poorly represented in the Surat defamation case. Print India has an interview with Rahul's lawyer- one Kirit Panwala who says that there is 'no Modi community' and then tells us that he himself belongs to it! Was the fellow a fool or a 'thief' bribed by the BJP to throw the case? Let us see what Panwala has to say for himself.
Mumbai: Rahul Gandhi’s disqualification from the Lok Sabha has created a sensation. It was a fallout of his conviction in a defamation case in a Surat court. The charges against Gandhi were defended by local lawyer Kirit Panwala.
Congress should have brought out the big guns. At the least, Panwala should have immediately filed a review petition.
Panwala is a senior lawyer with 47 years of legal practice.
He is 70 years old. His argument was that the Magistrate could postpone the case under Section 202 of the Crpc. This gives relief to people living in far off places. The problem was that Rahul was a frequent visitor to Gujarat. He wasn't a poor man who could not afford the price of a train ticket.
Panwala also said that Narendra Modi alone could bring the case. Yet Rahul had said that a little digging would show countless Modis were in fact thieves. Thus anyone by the name of Modi could bring an action under Section 499 of the IPC. Furthermore, the Supreme Court had admonished Rahul in 2016 against 'collective defamation'.
Panwala needed to take a different approach mindful of the fact that Rahul was not an indigent and, moreover, had already been reprimanded by the Bench.
In a telephonic interview, he explains the details of the case to ThePrint and why he thinks the line “all thieves have the common surname Modi” doesn’t deserve a harsh punishment.
Kiritbhai, it has turned out to be an historical case. Were any of your arguments weak that they led to this judgment?
I don’t believe that any argument was weak;
Rahul is very poor. How he can afford train ticket! Don't you know the poor fellow had to walk all the way from Kanyakumari to Kashmir because his Mummy is not giving him any pocket money with which to buy bus or train ticket?
the arguments were extremely clear and the counter-examination was also conducted aptly.
Moreover, the factual aspects of the case are not strong enough to invite deep thought. At the election rally, certain accusations were made against Narendra Modi and a sentence was casually spoken in the end i.e., – “Nirav Modi, Lalit Modi, Narendra Modi … how come all thieves have the common surname (of) Modi?”
Rahul added that with a little 'search' hundreds more Modis would be seen to be thieves.
Actually, 90 per cent of the allegations made in this ‘defamatory’ comment are against Narendra Modi and the law dictates that if the allegations are against an individual, that person should file a complaint as the aggrieved party. In this particular case, Narendra Modi should be filing a complaint (which he hasn’t) and we have Purnesh Modi filing a case instead! How can he, when the law does not allow him to do so?
Purnesh could bring in witnesses who said that hearing Rahul caused them to become suspicious of Purnesh. A little 'search' might show he was a thief. Why take the chance?
Purnesh Modi lodged the complaint because of the line “all thieves have the common surname Modi” . He himself is a Modi.
In which case there is a Modi community. Those members of it who keep Modi as a surname will be lowered even in the eyes of their own jati as likely to be thieves. Panwala himself is an example. Since his own surname is different, he may gain an advantage over his caste-fellows thanks to Rahul's speech. This is contrary to Section 499.
A sentence of two years’ imprisonment over one line? I have researched many past judgments in similar cases and not a single upper court has sentenced an accused to a two-year imprisonment; they have either been let off with a reprimand or a nominal punishment or a penalty, nothing beyond that.
Rahul was admonished by a two Judge Supreme Court Bench against 'collective denunciation' in 2016. Moreover, by reason of being a legislator his remarks carry more weight. He should have been more careful. He showed reckless disregard in this respect.
This particular case doesn’t even justify this because the quoted sentence – “how come all thieves have the common surname Modi” – refers to ‘Modi’; and people are presuming that it refers to the entire Modi community. Whereas actually, there is no reference to the community at all! The community does not come into the picture.
But isn’t (there) the reference to the Modi community?
We have proved that there is no Modi community, per se. We have Modh Vanik, Modh Ghanchi and so on, but no Modi community. And if there is no Modi community, how does the question of raising a complaint as a representative of this so-called community arise?
So Modh Vaniks whose surname is Modi suffer in the eyes of their own caste fellows just for that reason because of Rahul's reckless statement. That violates Section 499. The fact that two different sub-castes may have the same appellation does not reduce the offence. It was enough that Purnesh could easily bring witnesses to say they didn't vote for him because of Rahul's comment.
Secondly, let’s take up their representation on the grounds that Modi was being used as a surname and there are reportedly 13 crore people in India carrying that surname. According to the law, this group is considered as ‘loose and unidentifiable’
No because Panwala himself has stipulated that there are at least two identifiable groups 'Modh Vainiks' and 'Modh Ghanchis' some of whose members use Modi as a surname. Not everybody with the surname Khan is Muslim. Yet to say 'all terrorists are Khans' is collective denunciation or defamation. It stigmatizes a particular cohesive and identifiable group. If I said 'all Susans are sluts' it is defamatory because we can easily identify people with the name 'Susan'. If I say 'all Fascists are sluts' this is not the case because there is no way of saying who is or isn't a Fascist in India because there is no Fascist party in the country.
and as per norms, one cannot lodge a complaint as a member of an unidentifiable group.
Yet if you shout out 'Mr. Modi, there is a visitor for you' only people actually called Modi will respond. A surname is one of the most identifiable things about us.
The Supreme Court has passed many such judgments in the past in similar instances. For example, there was a case filed in Gujarat against someone who had termed lawyers as ‘dispute dalals/ brokers’; in response to which the court ruled that the term (dispute broker) was used for lawyers in general and not to any identifiable, definite and determinative group and hence, a case cannot be lodged against the person.
This is clearly stated in Section 499. You can say 'all politicians are thieves'. You can't say only politicians named Modi are more likely to be thieves.
Similarly, there was a complaint filed against filmmaker Raj Kapoor for using a particular term for the scavenger community. The term was used by a Brahmin character in his film Ram Teri Ganga Maili. In that case also, the Supreme Court ruled that the particular term (now made illegal to use) is a loose, unidentifiable group, so the case doesn’t hold ground.
Why bring this matter up? Society has moved forward a lot since then. At one time it would have been fine for Americans to call me a nigger. Even saying, 'have you noticed dark skinned people are much more likely to be terrible Accountants' is defamatory because it is easy to identify people with that trait.
The court had made a similar ruling in a case filed against actress Asha Parekh for allegedly portraying lawyers in a poor light in one of her films.
This man is utterly senile! Why bring up Raj Kapoor and Asha Parekh at this late hour? No wonder Rahul lost his case.
We can definitely say that there is no ‘maintainability’ in the complaint.
Which is why the Court found RaGa not guilty- right?
Secondly, this line is a stray sentence in the entire speech. There is absolutely no intention to harm or even the knowledge that it will harm anyone.
Nonsense! The intention was to harm politicians surnamed Modi by suggesting that they were likely to be thieves.
Gandhi was delivering a speech in Bengaluru where it is highly improbable that anyone with the surname ‘Modi’ was present in the audience;
there are plenty of Modis conducting business in Bengaluru.
and no one has been able to provide evidence also on these lines.
This senile fool doesn't seem to understand that we aren't living in the times of Raj Kapoor and Asha Parekh! Has he heard of Youtube and Twitter and 'viral videos'?
Their stand is that Modh Vaniks are the Modi community. Gandhi actually meant to say – This Nirav Modi, this Lalit Modi, this Narendra Modi…why is the surname of all THESE thieves Modi? But he made a slip of tongue by missing the word THESE which these people have caught and blown out of proportion.
Why did Rahul not say this? He gave testimony to the Magistrate. Had he said 'I misspoke. I have the greatest respect for Modi community. I meant to say 'despite being Modis, these three people have been found to be thieves'. In that case, Narendra Modi alone could have brought an action for defamation but Rahul has a good faith defense.
Did you anticipate that this (conviction) would happen?
If he says no then he is convicting himself of being a shit lawyer.
We have been arguing the maintainability of the case. There was a stay on the case. Later, Judge A.K. Dave was transferred and Judge Harish Verma came in his place. Meanwhile, the stay was withdrawn, the hearing started and the judgment followed.
Abhijit Singhvi may be able to show that Verma is prejudiced against Rahul and thus get a mistrial.
Do you think the two-year sentence is too harsh?
Yes. This is a case of 'the process being the punishment'. Rahul's sentence will be reduced or it will be suspended. But he should show some contrition. After all, he apologized to the Supreme Court for falsely attributing a statement against Modi to them.
That is my second point; my first point being that this case itself has no ground. Punishment just cannot be inflicted. Even if the court finds a person guilty, the sentence cannot be so long.
Yes it can. Two years is the maximum. What if CJI takes over the case and lets the sentence stand? That is what should worry Rahul's lawyers.
How true is the story doing the rounds that Rahul Gandhi never took this case seriously?
It is true. If you take a case seriously, you hire a top lawyer- e.g. Singhvi. Even Rahul isn't such a fool as to leave the appeal in the hands of Panwala.
This allegation is entirely baseless. The legal trial has been taken extremely seriously, no leeway was sought.
He himself sought leeway on the grounds that Rahul would face difficulty appearing in court because he lived far away.
So are you of the opinion that Gandhi took this case seriously?
Panwala can't say no. That would be to admit that he is a shit lawyer. However, the rest of us can say 'Rahul, poor fellow, could never have foreseen that a mere magistrate would dare to jail a scion of the Dynasty'.
Yes, people have a wrong image of him and so does the media. I have found him to be a great democrat. He has never missed a single court hearing.
because he is not actually an indigent who can't afford the price of a train ticket.
Two of his cases are going on in Ahmedabad; I need to go many times for the hearings and have noted that he comes on time and he respects everyone, including the court. In fact, he is closer to the ideal framework of our country which was drawn by our post-Independence leaders than Narendra Modi is.
Because he the great grandson of Nehru.
Why didn’t he offer an apology?
We tried twice to negotiate some kind of a mutual understanding. But the complainant wasn’t ready. In an SC contempt case, an apology can be offered but the situation is very different in a defamation case in a lower court. We were ready to give in writing that Gandhi respects all communities. But somehow, the complainant was not ready to accept that.
Did the complainant also refuse to stick a pineapple up his own bum? How very unreasonable of him!
Why were the oral submissions not submitted in written form, like many others do?
Gandhi has made written submissions too.
They'd be worth reading. Why not publish them?
Probably, it wasn’t mentioned separately in the judgment because written submissions fall within the oral submissions segment, per se.
Why did you not take a stay on the very same day that the judgment was passed?
A revision petition should have been immediately submitted. Congress should have had teams ready in the Allahabad High Court and the Supreme Court so as to get relief or remedial action. Pawan Khera's lawyers seem to have been quick off the mark to get him relief. Why was this not done for Rahul?
According to Section 8 of the Representation of the People Act, 1951, an MP/MLA convicted of any offence and sentenced to imprisonment for not less than two years is disqualified immediately from the date of conviction.
It is the 2013 Lily Thomas judgment which is salient in this respect.
But the judge had given you time to approach the higher court…
Yes, he granted a period of one month – but this was for appeal for procuring bail. The punishment has been postponed till then. But conviction and punishment are two totally different issues. A stay should be given on the punishment so that there is relief in the disqualification (from Parliament) element; if there is a stay on the conviction, then there is no relief.
This is where the lawyers fell down. To be fair, we don't know the client's instructions.
Weren’t you aware that if Gandhi being an MP is sentenced to two years’ imprisonment, he will be immediately disqualified from his post?
Of course, we knew this and we had also discussed (this) among ourselves in detail. But what precautionary steps could we have taken? Could we presume that ‘this person is going to be sentenced so let us take steps in advance’ — the law doesn’t allow this!
Nonsense! The High Court could transfer the case because it was clear that appeal would be lodged if there was an unfavorable verdict.
And such steps are akin to defamation or contempt of court.
Not if the thing were done properly. Only if you unfairly allege partiality against the Magistrate could this arise.
In fact, the Lok Sabha administration declared it the next day, but the disqualification took place the day of the judgment itself. Even if they declare this after five days, disqualification comes into effect the moment a lawmaker is convicted.
Which was precisely the reason the transfer of the case would have been allowed. Once the case was put on fast track, the attempt should certainly have been made as the High Court has a full docket and would be more likely to grant continuance if a very senior lawyer was employed who could show that he had conflicting obligations.
What next?
After reading this judgment and drawing relevant points, we will appeal in the sessions court for suspending punishment and also the conviction. We will appeal under Section 374/3 of the IPC. Within this appeal, we will apply for a stay on the punishment. We will seek suspension of the two-year punishment along with bail, and will try to procure orders on these lines. If we get the order, we can file an appeal. The result could be imprisonment or release.
I suppose a superior court will alter the quantum of punishment to a simple fine. However the Supreme Court may take over the case.
Is the BJP losing ground as Gandhi is gaining public sympathy because of the verdict…what are your thoughts on this?
Public sympathy is an offshoot of the entire proceedings. They had never in their wildest dreams imagined that something like this could also happen!
Why not? The Supreme Court's admonitions to Rahul should have alerted his lawyers that imprisonment was an option.
The BJP treats the fourth estate as its property so they never thought that this case would attract so much publicity in the media and sympathy from the general populace. Apparently, the mindset of the public has changed slightly.
This is nonsense. The BJP knows there are big media houses in non-BJP states which will give plenty of publicity to Rahul's 'crusade'. The alternative is getting beaten up by Stalin's or Mamta's goons.
In the scenario of Gandhi not getting a stay, will he have to go to jail immediately?
Yes, and he has openly said, “I am prepared to go to jail.” Their intentions also are to imprison him. Else, even a layperson with basic common sense will wonder how a complaint was raised via WhatsApp in Surat against a slip of tongue by someone a thousand kilometres away, in Bengaluru, during an election rally where Modi was not even present. That too, in the context of highlighting issues such as unemployment, inflation and misgovernance.
But laypeople in India know a lot about WhatsApp though they may not remember Asha Parekh.
Legally, an inquiry should be instituted into this complaint. There was an amendment in 2005 that a case cannot be filed against a person staying outside the area of jurisdiction and summons cannot be sent at all.
Has Panwala been putting cannabis into his paan? There is no such provision in Indian law. The plain fact is the victim of criminal defamation can bring a private suit in his local court. The Police had also registered a FIR.
The High Court clarified Mr. P.S. Champaneri raised the substantial issue with regard to maintainability of present petition invoking extraordinary jurisdiction under Article 226 of the Constitution of India and Section 482 of the Code. It is settled law that the remedy under Article 226 is discretionary remedy for doing complete justice and correcting injustice. So far Section 482 of the Code is concerned, if the high court finds necessary for securing the ends of justice, the section empowers the High Court to exercise its inherent powers and in that case, there can be no limitation in exercise of its power. Thus, noticing the facts of the present case and the way in which the impugned order is passed by the trial Court, this Court is of considered view that, the dismissal of the application at Exh:59 by the Court below is not in consonance with the object and scope, as prescribed under Section 311 of the Cr.P.C and dictum of law settled by the Apex Court. As a result, this Court finds that case is made warranting interference in the impugned Order. Hence, the impugned order dated 05.01.2021 passed by learned Chief Judicial Magistrate, Surat, below Exh:59 in Criminal Case No.18712/2019 is hereby quashed.
In view of the same, how can someone staying in Surat file a case against Gandhi who is residing in Delhi?
In the same way that Bill Gates can bring a fraudster living in London to face trial in an American court.
The proper process is instituting an inquiry; but if they follow this procedure, then they cannot reap its benefits for the coming polls. Their strategy of gathering all the Modh Ghanchis and Modh Vaniks under the pretext of the ‘Modi surname’ case would fail.
Rahul's lawyers threw doubt on the official videos of Rahul making the remark. The complainant got a stay on the proceedings so as to get more evidence. In February, the High Court vacated the stay on the complainant's petition. The Magistrate accepted the veracity of the evidence in line with the High Court's judgment to establish the truth by calling witnesses. Rahul had indeed make the objectionable remarks. That is why he was sentenced.
They served the summons without conducting an inquiry and initiated the case. If you delve deeper, there’s nothing in this case. People will wonder, “ What crime did Rahul Gandhi commit that he was given a two-year sentence?”
His lawyers said he hadn't said what we have all seen him saying on Youtube. He was guilty though he had pretended not to be.
…If this angle is properly highlighted in the media, everyone will realise that there’s nothing in this case.
Except what he actually said which he denied saying.
Is there any other such case filed in Gujarat?
No, not in Gujarat; but similar cases have been filed against Gandhi in other parts of India.
I mean over this particular reference of ‘Modi’?
Yes, Sushil Modi in Bihar has filed a case. It’s an ongoing case.
So, it is clear that a large class of people across the length and breadth of the country have been harmed by Rahul's defamatory remark. He could say 'everybody knows I am a cretin and a habitual liar. Thus nobody has been damaged.' The problem is that Congress is a big organization. It has 45 million members. It rules States like Gujarat and Himachal. Thus, even if everybody thinks Rahul is a lying cunt, still Congress members may act in a hostile and discriminatory manner to people surnamed Modi.
Are you a Modh Vanik too?
I am of the same caste as Narendra Modi, I am also a Modh Vanik; we are also known as Modh Ghanchis.
So, the cretin admits that there Modis are a community! He himself is one.
I am totally different from the people of my caste who are pro-BJP. I believe in secularism, I believe in democracy and I
worship a dynast because democracy means licking the arise of the great-grandson of the first PM- unless his name is Varun.
also believe that in the rule of Narendra Modi, democracy is under threat as we are all under an autocratic rule… and the less said about secularism, the better.
The less this man says the better for Rahul. He has asserted that he himself is a Modi but he is an unusual Modi who worships Rahul because he thinks 'democracy' means licking the arse of the dynasty. Suppose Rahul says 'all people from Modi caste suck off homeless dudes' then he will be very happy. He will immediately start sucking off homeless dudes. The police will arrest him for public indecency. He will go to jail where he will be able to lick Rahul's arse to his heart's content- unless Singhvi can keep the mooncalf out of jail.
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