The Wire has sought to suggest that the defamation case against Rahul was wrongly decided
The case was filed on April 16, 2019 and Rahul Gandhi appeared in the court of the then CJM, Surat, A.N. Dave on June 24, 2021, to record his statement in person.The CJM passed judgment favorable to Rahul. Complainant approached the High Court (Purnesh Ishvarbhai Modi vs State Of Gujarat on 17 August, 2021) who quashed the impugned order and an sent the matter back to the trial court with a direction to be mindful of the decision in Arjun Panditrao Khotkar v. Kailash Kushanrao re. admissibility of electronic evidence. The effect of this is to lower the burden of proof for the complainant.
In March 2022, when the complainant’s request for Rahul Gandhi to be summoned again was rejected by the CJM who insisted arguments commence immediately, the complainant rushed to the high court and sought a stay on the trial’s proceedings. This was granted on March 7, 2022.
Why? It was because the Magistrate refused
1) to let the accused testify re. the video material of his speech or else
2) to adjourn the matter so the petitioner could move the High Court
Thus the complainant went to the High Court himself and gained a stay. The following was cited (Dharnidhar v. State of U.P. & Ors., (2010)) “29. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 of the CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC.”
After a hiatus of 11 months, the complainant went back to the high court on February 16, 2023, seeking vacation of the stay, pleading that “sufficient evidence has come on record of the trial court and the pendency of the present matter delays the trial”.
Also, there was a new magistrate. It is perfectly natural that if you have twice had to go to a superior court to quash decisions of a particular Magistrate, that you will wait till a new judge is appointed.
Though no new evidence had come on record since the stay and the “pendency of the matter” was entirely at his own instance, the complainant was granted the relief he sought.
Because CJM A.N Dave not once but twice passed orders which were quashed by the High Court. Clearly it was better to wait for a more sensible fellow who would take cognizance of the High Court's directions.
Purnesh Modi’s decision to restart a trial he had himself put on hold for a year came barely a week after Rahul Gandhi had launched a sharp attack on Narendra Modi in parliament over his links to controversial businessman Gautam Adani.
When is Rahul not running off at his mouth against Modi? The plain fact is that two different politicians named Modi, one in Gujarat another in Bihar, filed defamation charges against Rahul much before he started bleating about Adani.
The trial resumed on February 27, 2023, this time before another judge, CJM H.H. Varma.
In his arguments on March 8, 2023, Gandhi’s counsel submitted that Purnesh Modi had no locus to claim defamation as the target of the Congress leader’s impugned speech was Narendra Modi.
Yet, everybody surnamed Modi has a locus if it is asserted that all Modis are thieves or catamites or terrorists etc.
“In the entire complaint, there is only one allegation that is not against Narendra Modi,” the Times of India quoted Gandhi’s lawyer as arguing, which was ‘How come all [these] thieves have the same name, Modi?’. “For this too, Purnesh Modi has no right to complain as the allegations are not against any caste or community… And even if the allegations are against those with Modi surnames, then there is no association of those holding Modi surname,” the lawyer said.
Yet the same lawyer has said he himself is a Modi by caste!
Arguments concluded the following week and CJM Varma reserved judgment. On Thursday he pronounced his ‘guilty’ verdict and sentenced Gandhi to the maximum punishment of two years imprisonment.
Because Rahul had ignored repeated warnings from the Supreme Court.
Was the Surat judge right in proceeding against Gandhi without a preliminary inquiry?
There was a preliminary inquiry. The High Court directed the CJM to be mindful of Arjun Pandit case. This meant admissibility of the electronic record. Rahul had indeed said what the video showed him as saying. He was guilty.
Rahul Gandhi’s legal arguments initially focused on the key question of jurisdiction under Section 202 of the Code of Criminal Procedure, which specifies the process a court must follow if it is proceeding against someone outside its usual territorial jurisdiction.
The High Court had clarified that inherent power of the Court permitted the case to go ahead. Why pretend that Rahul is an indigent fellow who can't travel to Gujarat?
While upholding the constitutional validity of criminal defamation (Sections 499, 500 IPC), the Supreme Court in Subramanian Swamy vs Union of India held that there is a heavy burden on the trial court judge to scrutinise the complaint from all aspects.
There is also a duty to observe the directions of a higher court.
The judge must also keep in view the language employed in Section 202 CrPC, which deals with how to proceed when the accused is resident at a place beyond the area in which the trial court exercises its jurisdiction. “Application of mind in the case of a complaint” is imperative in deciding whether the ingredients of Section 499 IPC are satisfied, it added.
Application of mind showed that Rahul could easily attend court not just in Ahmedabad but also in London, Monte Carlo and Phuket in Thailand.
Section 202 deals with the issue of process by a magistrate. As amended in 2005, this provision says that it is mandatory for a magistrate to postpone the issue of process against an accused person who is residing outside the territorial jurisdiction of the magistrate till such time he concludes an inquiry into the charges.
This was done. The issue was admissibility of electronic evidence. High Court directed that the precedent in Arjun Pandit should be followed. It is foolish to say that unless this official or that official certifies authenticity of a video it should be inadmissible. Rahul's counsel wasn't saying the thing was a 'deep fake'. They had simply tried a legal trick to get their client acquitted due to lack of evidence.
“Rahul Gandhi is a resident of Delhi, which is outside the jurisdiction of this court,” his lawyer submitted before the CJM on March 7, “For such an accused, the law requires the witnesses to be examined, and the matter enquired. The court is then required to give the reason on whether to issue the summons or not. No such thing was followed,” the Times of India quoted him saying.
What is the point of making such a claim after Rahul had in fact shown up and given his testimony?
In Vijay Dhanuka and Others v Najima Mamtaj and Others (2014), the Supreme Court has held that, it is mandatory for the magistrate to conduct an inquiry or direct an investigation before issuing process when the accused person resides beyond the territorial jurisdiction of the magistrate.
How is this relevant? It is obvious that the procedure was followed because Rahul himself turned up. If there was any procedural fault why did his lawyers not petition the High Court in the same manner as the complainant did- that too twice?
The apex court went one step further in Birla Corporation Limited v Adventz Investments and Holding Limited (2019), holding that the issuance of process should not be mechanical nor it should be made as an instrument of harassment to the accused.
Why mention this now? Why did his lawyers not approach the High Court to have the proceedings quashed? Was CJM Dave in their pocket? Were they hoping to get a favorable ruling in Surat so as to stop similar proceedings elsewhere?
An issuance of process calling upon an individual to appear as an accused in a criminal case is a serious matter and if there is lack of material particulars and non-application of mind by the magistrate as to the materials, this cannot be brushed aside on the ground that it is only a procedural irregularity.
Why bring this up only now after your client has been sentenced to two years imprisonment? Why was this not a 'serious matter' in 2021? How did it suddenly become serious only in 2023 after a new CJM was appointed? Did Congress have some sort of hold over Dave?
In Abhijeet Pawar v Hemant Madhukar Nimbalkar and Another (2017), the Supreme court held that if the mandatory requirement of Section 202, CrPC is not fulfilled by the magistrate before issuing process, it can direct him/her to take up the matter up afresh and pass appropriate orders in compliance with the provision.
But it was the complainant who got the High Court to quash the CJM's orders! Were Rahul's lawyers really so greatly inferior to those of the complainant? Why did they sleep upon their rights? What has caused them to wake up only now?
Rahul Gandhi’s lawyers raised these questions before the CJM and in the appeal his team will file, his counsel have already indicated that one plank of appeal will be non-compliance with Section 202, CrPC.
It will fail. The High Court has already given decisions on what compliance entailed. Only the Supreme Court can overrule the High Court.
Defamation of a group: What the Supreme Court’s guidelines say
While politicians in India often resort to making fun of names in order to score points against their opponents, Rahul Gandhi’s attempt at humour has landed him in trouble.
Because he is as stupid as shit.
Explanation 2 to Section 499 IPC says that it amounts to defamation to make an imputation concerning a company or an association or collection of persons as such. However, in a key 2010 case, the Supreme Court has laid down the conditions under which a collection of persons can allege defamation.
Section 499 is clear enough. A bunch of people with the same name are 'identifiable' because...urm... that's how names work. The additional factor is that Modi is the name of a caste.
In S. Khushboo,v Kanniammal,
some married Tamil women pretended that the statement that it was okay to have extra-marital sex meant that everybody would assume they were sluts.
it ruled that though Explanation 2 is wide, the only way a collection of persons ca demonstrate the offence of defamation is if they are 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.
Why the fuck did such a stupid case end up before the Supreme Court? Is it really the case that Tamil women are a species apart from the rest of humanity? Also if I were to say 'it's okay to fart while relieving yourself' will Tamil people claim that I have accused them of uncontrollable flatulence? Yes. I'm Tamil myself and I regularly accuse myself of the very same fault.
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.
How is this relevant? If you shout out 'Mr. Modi! Is there a Mr. Modi here? There is a visitor for Mr. Modi at reception' then only people named Modi will come forward. True, you might get an occasional Iyer who also comes forward because he is very flatulent and wants the visitor to smell his 'silent but deadly' contributions to Civilization.
In the Surat case, it is difficult to contend that those with the surname Modi constitute a community, which was distinct from others, and that Rahul Gandhi intended to defame such a community. In S. Khushboo, the Supreme Court held that in case a class is mentioned, the complaint cannot be entertained if such a class is indefinite. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed.
Then Rahul's lawyer started giving interviews where he claimed himself to be a Modi!
Had Rahul Gandhi asked why these thieves all wear the gown, it can’t be libel.
Yes it can. Indeed, it could be hate speech or even part and parcel of a more serious conspiracy or even treason charge. We understand that some poor sod who has just lost his home and visitation rights might say 'all divorce lawyers are devils incarnate'. However, if that fellow is the dynastic head of a party with 45 million members and which rules over populous states and if lawyers are attacked or otherwise disadvantaged in some way, then the test of criminal defamation is met.
Similarly, the reference he made to the surname of three individuals – none of whom has alleged defamation – without elaboration of particulars, cannot constitute defamation, if Subramanian Swamy is an indication.
Yes it can. He said that with a little digging, countless more Modis would be revealed to be thieves. His own lawyer said in an interview that most Modis support the BJP. He himself didn't but he was unusual in that regard. Also his surname was not Modi. Still, the lawyer had given a motive for Rahul's malicious remark.
Can Rahul Gandhi be disqualified as a Member of the Lok Sabha following his conviction?
Yes. The thing is automatic. The Parliamentary Secretariat issues the order. This has nothing to do with any Ethics Committee. What follows is nonsense-
In January this year, the Lok Sabha MP from Lakshadweep, Mohammad Faizal of the Nationalist Congress Party, was disqualified after he was sentenced to 10 years imprisonment by a district court in an attempt to murder case. The Lok Sabha Ethics Committee decided to strip Faizal of his membership from the date of his conviction, i.e., January 11, 2023, in terms of the provisions of Article 102(1)(e) of the Constitution read with Section 8 of the Representation of the People Act, 1951. The Ethics Committee decided this after receiving communication from the district and sessions judge, Kavaratti, informing them about Faizal’s conviction.
The notice was issued by the Lok Sabha Secretariat. It is a separate question as to whether the Ethics Committee can expel a particular MP for defamation. The matter is justiciable.
This disqualification is now de facto on hold after the Kerala High Court suspended the conviction and sentence of Faizal, after his disqualification. In the case of Rahul Gandhi, the Surat court itself had suspended his sentence, to enable him to appeal.
It has not suspended the conviction. That is what matters. In the Faizal case, it may be that the man is innocent. In Rahul's case there is no doubt he is guilty. However the quantum of punishment may be scaled down on appeal at which point automatic disqualification will lapse.
Under Section 8(3) of the R.P.Act, an MP convicted and sentenced for two or more years invites disqualification. Although Faizal stands disqualified, the Election Commission withheld the Lakshadweep Lok Sabha by poll after the high court suspended his conviction and sentence. Although Faizal’s disqualification has ceased to have effect following the high court’s suspension of his conviction, there has been no formal revocation of his disqualification by the Lok Sabha speaker.
The Secretariat is what matters. Faizal will get a court order in that regard.
The question of the procedure by which Rahul Gandhi may be disqualified from the Lok Sabha arises in view of the Supreme Court’s 2013 judgment in Lily Thomas vs Union of India, declaring sub-section (4) of Section 8 of RPA unconstitutional. Section 8(4) of the RPA said that disqualifications take effect only “after three months have elapsed” from the date of any conviction if, during that interregnum, the MP or MLA has not filed an appeal against the conviction or the sentence before a higher court. Section 8(4) extended immunity from disqualification even if the court had not disposed of such an appeal during that period of three months.
In Lok Prahari v Election Commission of India (2018), the Supreme Court held that once a conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect.
The effect of Lily Thomas and Lok Prahari will, therefore, be that the Ethics Committee of the Lok Sabha can take cognisance of Rahul Gandhi’s conviction and proceed to disqualify him from the Lok Sabha once the Surat court sends them a communication to that effect.
This is nonsense. The Ethics Committee can expel a member but this is no bar on their seeking re-election.
Presumaby this is the basis for the Lok Sabha secretariat’s communication on March 24.
No. Disqualification was automatic and on the basis of the Election Commission's legal advise.
However, if and when an appellate court stays his conviction and sentence, the disqualification will cease to have effect.
The conviction has to be stayed. That is what matters.
The question to ask, however, is whether the Lok Sabha is right to disqualify Rahul Gandhi hastily without awaiting the outcome of his plea for stay of his conviction.
No. The thing was automatic and followed Lily Thomas (2013)
Is the Lok Sabha speaker right to ignore the Surat court’s suspension of his sentence, on the grounds that in Lily Thomas, a conviction which carries a sentence of two years and above is sufficient to attract disqualification?
The Speaker was irrelevant. The Secretariat had to act in conformity with the law.
In 2013, the United Progressive Alliance government had tried to circumvent the Lily Thomas ruling by enacting an ordinance. Ironically, Rahul Gandhi tore a copy of the ordinance at a press conference to express his protest against it, acutely embarrassing – and weakening – the then prime minister, Manmohan Singh.
The moon calf is now hoist with his own petard.
An additional question is the procedure for disqualification of an MP specified in Article 103 of the Constitution:
That question was resolved in 2013. The thing is automatic if a sentence of two years or longer is handed down.
103. Decision on questions as to disqualifications of members
(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall be referred for the decision of the President and his decision shall be final
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion
But Lily Thomas made the thing automatic. There is no discretion for the Speaker or the President or anybody else here.
Since Gandhi’s disqualification is pursuant to Article 102(1)(e) – “disqualified by or under any law made by Parliament” – it is the president of India who must sign off on the disqualification, on the advice of the Election Commission.
Nope. The thing is automatic.
It is not clear that this constitutional provision has been complied with.
Yes it is. What is equally clear is that the Wire employs cretins and that it is incapable of balanced reportage or commentary of any type.
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