Umang Poddar, writing for Scroll, argues that Rahul has been erroneously convicted of defamation. Sadly, he is unable to find any argument which addresses Section 499 of the Penal Code directly which is the law of the land.
Gandhi’s statement at the election rally was the basis for Bharatiya Janata Party legislator Purnesh Modi from Gujarat to file a case of criminal defamation against him. The BJP MLA claimed that the Congress politician had “defamed 13 crore people living in the whole of India having the surname ‘Modi’”.
The Surat court agreed. It said that Rahul Gandhi was a member of Parliament whose words would have a substantial impact on the public. It gave him to the maximum punishment under defamation law.
However, many legal experts believe that the elementary constituent of defamation – which is lowering someone’s reputation in the eyes of a reasonable person – has not been not met in this case.
Rahul uttered a casteist slur. Not all Modis are thieves but all thieves are Modi. If you dig a little you will find countless Modis are crooks. Thus, statistically, you should be more suspicious of Modis than other people.
In addition, Gandhi’s mention of the surname Modi is vague and does not refer to a specific set of people, they say.
Yet, it is a fact that Modi is a caste based surname though, of course, this isn't always the case.
Delhi-based senior advocate Nitya Ramakrishnan said that the judgement suffered from a lack of logic. “The first question is how is it defamation of Purnesh Modi or of all Modis?” she asked.
This question was answered by the petitioner to the satisfaction of the Court. It is obvious that it is defamatory to say that any given Modi- Purnesh or Narendra or anybody else- is more likely to be a thief whereas those lacking this surname are not thieves.
The statement must be examined to determine whether it intended to lower the moral or intellectual character of the complainant Purnesh Modi, she said. “This is the only reason upon which the complaint could have been entertained,” she said.
It very explicitly had the intention of damaging the character of BJP politicians like Purnesh Modi. Rahul Gandhi is a politician who opposes the BJP and who claims that it is looting the country.
The Code specifies that 'It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.' The collection in this case is people with the surname Modi- which is generally caste based in India.
However, she noted that Gandhi said that Lalit Modi, Nirav Modi and Narendra Modi are names of thieves. Lalit Modi and Nirav Modi are fugitive businessmen. “Even if he said all thieves are Modis, it cannot be interpreted as all Modis are thieves,” Ramakrishnan said.
This is irrelevant. It is enough to say, without any proof, that there is a higher risk of having dealings with Modis because 'all thieves' have that surname.
The statement did not hurt all Modis,
Yes it did because we have no means of ascertaining whether any given Modi we encounter is or is not a thief. All we have been told is that there is a higher probability that the person with the surname is not to be trusted. This gives rise to a prejudice against all Modis.
she said, “just as saying that all men are mortal is not the same as saying all mortals are men”.
It is the same unless we know of some class of beings of equal or greater sentience to ourselves who are mortal. The semantic 'extension' is the same.
In this case, she said that the question which must be asked is, “Does it convey to anyone that they should not deal with anyone whose name is Modi?”
At the margin, yes. If there are two candidates who are otherwise equal, choose the non-Modi because he is less likely to be a thief.
It does not, she said: “It was a rhetorical and half-jocular remark focusing on three names that were coincidentally ‘Modi’.”
Nevertheless, the Code specifies that the statement could be defamatory. The intent of the remark was to create suspicion against people surnamed Modi and cause them to give greater credence to the notion that such people may be thieves despite their being no evidence against them. Suppose one were to say list a number of notorious terrorists with a particular trait and then mention a person not known to be a terrorist who shares that trait then there is a clear attempt to defame based on the highlighting of a trait they share in common.
The judgement is flawed, Ramakrishnan said, and did not even meet the first threshold required in defamation cases.
Yet the judgment will stand though the quantum of punishment may be reduced. The alternative is that the law of defamation would no longer be applicable to a wide class of cases where people are stigmatized as terrorists or murderers or thieves simply on the basis of caste or creed or regional origin.
Can classes be defamed?
Yes. Section 499 clearly mentions class. It also mentions caste in a slightly different context.
Though some observers wondered after the verdict whether an entire group of people can be defamed, Section 499 of the Indian Penal Code makes it clear that defamation charges can be brought by “a company or an association or collection of persons as such”. However, the section adds that no imputation can be defamatory unless it “directly or indirectly” lowers the “moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling” in the eyes of others.
This test is met. Not all people belonging to a particular sub-caste carry the same caste-based surname. Thus there are plenty of 'Iyengars' who have a different surname. If I say- 'isn't it strange that all thieves happen to be called Iyengar'- then not only am I lowering the character of such people in the eyes of members of their own sub-caste who have different surnames but I am also lowering the character of Iyengars in the eyes of their professional colleagues.
However, advocate Apar Gupta, executive director of the Internet Freedom Foundation, noted there needs to be “a very high degree of certainty” that the individual claiming to have been defamed is being identified as a member of the group – which is usually a “well-defined class” of people.
Caste in India is very well-defined in law and Government policy..
But people having the same surname are, by their very nature, an indeterminate class,
Not in this case. It is easy to determine that I am not a Modi whereas the Prime Minister is.
Gupta said. “A person will not make an association with the complainant [Purnesh Modi] based on Gandhi’s statement,” he added.
This is clearly false. Suppose I am a member of the Congress party- as indeed many people in Surat are. If I engaged in a business or personal transaction with Purnesh Modi, I am likely to be reproached by other members of my party for either imprudence or a perverse defiance of the sage admonition of the beloved leader that 'all thieves are surnamed Modi'. Clearly a man who knowingly deals with such people is bound to get robbed sooner or later. This damages my credit. The same would be true if I socialized with notorious rogues or courtesans.
Gupta added that if someone says that all lawyers are crooks, that will not amount to defamation of all lawyers. “However, if someone says that all lawyers of Tees Hazari District Association [in Delhi] are crooks, then that is a determinative body which [and whose members] could bring a claim of defamation,” he said.
This is precisely what is happening here. It would be fine to say 'Only Indians are corrupt or thievish. Look at the Chinese! They are not greedy and unprincipled like us because Chairman Mao re-educated them.' It would not be fine to say 'Only people from Pinarayi are corrupt or thievish. They don't understand Mao and prefer to follow Deng Xiaoping.' then the statement is defamatory. It picks out certain members of the CPM in Kerala- most notably the CM- and not others.
Delhi-based senior advocate Siddharth Luthra said that while determining if a community of people has been defamed, “the main point to be noted is that you have to make a link that a person’s statement [about a community] has embarrassed me” as an individual.
The petitioner was a BJP politician who could easily find people to testify that they had become suspicious of him after hearing Rahul's words.
He said that this link has to be specific. “For instance, if someone says that all journalists are questionable,
questionable is not in itself pejorative
that does not mean that any journalist can bring a claim for defamation,” he said.
But if it was asserted that all journalists rape kids, then a particular journalist who had been injured by the spread of this canard would certainly have an action for criminal defamation.
However, Luthra said that since he had not examined the evidence presented in this case, he could not comment on whether the judgement was correct.
But would do so if paid sufficiently. Lawyers don't work for free you know.
How has the court interpreted it?
In previous instances, the Supreme Court has said that if a community believes it has been defamed, the remarks have to be specific and identifiable. This was illustrated a landmark case from 2010, when an actress made a general claim that incidents of pre-marital sex and live-in relationships in Tamil Nadu and noted that this was not an offence.
She said there was nothing wrong with sex outside marriage.
Several complaints were filed against her, including several by married women who were politicians and social activists. They claimed that the actress’ remarks had lowered their reputation by suggesting that people of their category engaged in pre-marital sex.
This was patently absurd. The case should have been dismissed with prejudice. It should not have gone all the way to the Supreme Court.
The Supreme Court held that there was no intent to cause harm to complainants nor was there any actual harm caused to their reputations. It added that the complainants were “reading too much” into the actress’ remarks. It was a rhetorical remark which did not suggest that all women in Tamil Nadu engaged in premarital sex and nor was it directed at any individual.
However, in cases where the group is identifiable, the court has upheld defamation claims. Among these was a case from 1965, which related to an article published in a newspaper containing defamatory remarks about public prosecutors in Aligarh. The court said that they were an “identifiable group of prosecuting staff” so could bring a claim of defamation. If they had been an indefinite group of people, such a claim could not be brought, the court noted.
So, the Scroll article comes to the conclusion that Rahul has defamed a determinate class of people- viz. those surnamed Modi whom it would be natural to link to the people Rahul named. Suppose Rahul could prove that Narendra Modi is a thief- as he has repeatedly asserted (chowkidar chor hai)- then he had a defense in law. But Modi is not a thief. Rahul was reckless in not being content to defame his avowed enemy but everybody with the same surname.
One reason Rahul got such a stiff sentence is that he ignored the 2016 warning given to him by the Supreme Court (Misra & Nariman) against what it called 'collective denunciation'. Yet, in 2019, that is exactly what he did branding all Modis as being statistically more likely to be thieves. Indeed, this implies an 'inherent vice' because, according to Rahul, non Modis don't steal. Yet, we know of at least one family surnamed Gandhi which appears to have become very very rich in the last few decades. But then, I suppose, Indian history has had many 'looters' who arrived from foreign countries and enriched themselves beyond the dreams of avarice.
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