RaGa's defamatory defence

 Why won't Rahul apologize for his statements re. the Modi community? After all, he apologized to the Supreme Court for saying that the Bench had called Modi a thief. In that case, Rahul was worried about contempt of court charges. But, a little later, Prashant Bhushan described the Judges as corrupt tools of the ruling party. Bhushan refused to apologize. Ultimately, the Bench backed down and levied a nominal fine upon him. Rahul must have felt that he too could afford to defy the Courts and emerge a hero. The problem is that, to do so, Rahul has to defame the Judiciary- in this case, he is saying that the Gujarat High Court passed two orders which were wrong in law. The problem is that they were right in law and reflected recent Supreme Court judgments. Moreover Rahul himself was a petitioner in Subramanian Swamy v Union of India, where the Bench upheld the criminal defamation law. In other words, the constitutionality of the offense is a settled matter. Thus Rahul, in his own childish way, is defaming the Supreme Court. Precisely for that reason, the Bench may back down. Indeed, it may reverse Subramanian Swamy and decide to put they law on Criminal defamation, like that of Sedition, in abeyance to spare itself a nuisance.

Will Rahul benefit by his intransigence? No. Look at Kejriwal. Though he launched his political career by defaming all sorts of people, he retained popular support by showing himself to be a good administrator focused on the issues that matter to the ordinary voter. Instead of showing obstinacy or intransigence, he apologized and got defamations proceedings dropped by the likes of Arun Jaitley, Bikram Singh Majithia,  Nitin Gadkari, and Kapil Sibal’s son Amit Sibal. This did him no harm whatsoever. Kumar Vishvas refused to apologize to Jaitley and has vanished from the political scene. Kejriwal continues to hold sway because, firstly, he had a 'good faith' defense- or so voters believe- and secondly he was taking on individual politicians who, by reason of their profession, need to have thick skins more particularly where there is a prima facie case of wrongdoing. Indeed, politicians welcome such attacks because in clearing their name they can draw attention to their achievements while continuing to appear properly humble and anxious to be answerable to the public.

According to the 'Bar & Bench' website, Rahul's demand that charges against him be quashed is based on the following 7 points

1. Complainant had no right to file defamation complaint; only Narendra Modi could have filed complaint

Gandhi has contended that the complainant Purnesh Modi was not an aggrieved person for the purposes of Section 499 of the Indian Penal Code (IPC), which criminalises defamation, and thus had no right to file the complaint.

It has been pointed out that normally, criminal law can be set in motion by anybody, but so far as the offence of defamation under Sections 499 and 500 is concerned, only a person aggrieved by the offence can file the complaint.

"...for the alleged imputations against Shri Narendra Modi individually, only Shri Narendra Modi can be considered as the person aggrieved of the offence of defamation and only Shri Narendra Modi can file a complaint for the same and Shri Purnesh Modi the respondent/complainant has no right to file the complaint on his behalf..."

Merely because the complainant is a Modi and the defamatory imputation has a word 'Modi', the complainant does not get the right to file the complaint, it is argued.

Section 499 states that 'It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such'. There is a set of people who have Modi as a surname. The question is whether the person who filed the case could show that he had been affected by Rahul's statement. The answer is- yes. He could show there were people in his constituency who became doubtful of his character because of Rahul's allegation. 

Section 499 states- 'No imputation is said to harm a person’s reputa­tion, unless that imputation directly or indirectly, in the estimation of others, 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, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgrace­ful.' The complainant's reputation was directly harmed. His surname was Modi and he was a politician. People who consider Rahul to be truthful would be prejudiced against this man just because of his surname. He could easily find people in his constituency who would say so. Ispo facto, there is defamation. 

Rahul had been previously warned by the Supreme Court not to indulge in 'collective denunciation' He had 'reason to believe that such imputation' (viz. that all thieves are Modis) will harm al politician named Modi even if that person was not the Prime Minister.


2. Opposition leader has to be vocal critic of the government

Politicians have a good faith defense when they attack other politicians because there is some prima facie evidence of impropriety. But that attack must be narrow and not extend to all people who share a particular trait. It is one thing to say 'Narendra Modi is a thief'. It is another to say 'all thieves are Modis'. The imputation is that there is some 'inherent vice' in Modi such that even if there is no evidence he is a thief, yet sufficient digging would discover he was so by reason of being a Modi. Indeed, Rahul added that if you search a little you will find more and more Modis are thieves. The meaning is plain. There is some heritable trait in a particular set of people which causes them to be larcenous. Dig a little and you will find every one of them is a bad apple. 


In his appeal, Gandhi has said that he being an opposition leader, he has to be vigilant and critical of the government. 

Gandhi is a member of parliament and thus has an obligation to know what is or isn't defamation since defamatory remarks in the House may be expunged. Vigilant criticism is less effective if you show a reckless disregard for the truth or indulge in collective denunciation.

While serving his duty as a critic of the government, he is bound to cause annoyance and embarassment to those in power.

But he has caused annoyance and embarassment even to those not in power who simply happen to be Modis by birth,

"By the very nature of his task, a politician in opposition cannot always weigh his words in golden scales. 

But a politician can apologize for getting carried away and saying something he did not mean.

Hence it is incumbent upon the courts to focus on the essence and spirit of the speech made rather than on the tone and tenor," the appeal states.

Rahul said that if you dig a little you will find lots of Modis are thieves. If this wasn't what he meant to say why not apologize? 

Gandhi pointed out that in his statement, as many as six people were mentioned as economic beneficiaries, namely Nirav Modi, Mehul Choksi, Vijay Mallya, Lalit Modi and Anil Ambani.

Yet he said all thieves have Modi as the surname. If he meant to say something else why does he not apologize?

"It is the undisputed position that some of these persons did not carry or bear ‘Modi’ as the caste or surname.

An 'economic beneficiary' is not necessarily a thief. Why did Rahul says all thieves are Modis? Is it because the other beneficiaries did not steal but received money in return for sexual favors? Did Vijay Mallya suck off Manmohan Singh? Is that what Rahul is getting at?

 What distinguishes these persons as a group, was the manner in which they carried out their economic activity to the detriment of the national interest and their apparent closeness with the powers that be," he highlighted.

Vijay Mallya became a Rajya Sabha MP with support from Congress. Was this because he offered oral sex to Congress leaders? 

Mehul Choksi is the uncle of Nirav Modi. He flourished under Manmohan and says BJP is out to get him to make him the scapegoat for the faults of the Nationalized Banks. Lalit Modi was the protege of Sharad Pawar- a key Congress ally. 

Rahul targeted Anil Ambani in 2019 perhaps because Mukesh was backing Congress. Still Anil's bankruptcy did not have any political fall out. If Adani falls or doesn't fall, Modi will be unaffected. 


3. Merely because complainant was shocked or his reputation was hurt, doesn't make him an aggrieved person

But a politician named Modi can easily show he was damaged by a claim by the leader of a big party that 'all thieves are Modis'. If this were a civil case we would say, res ipsa loquitor. The thing speaks for itself. Rahul- if he misspoke- negligently harmed Modi. If he didn't misspeak, and that is why he won't apologize, then criminal defamation arises. A Modi has every reason to be aggrieved by the charge that all thieves are Modis. 

Gandhi has pointed out that the trial court convicted on the basis of two reasons - that the complainant was shocked at this statements,

I think this is a mistranslation. The meaning is he suffered an injury of a shocking kind.

 and that his reputation was hurt. It is contended that these reasons do not make Purnesh Modi an aggrieved person for the purposes of Sections 499 and 500 IPC.

In that case why was the case not thrown out by the original CJM? At the least, Rahul could have gone to a higher court to get proceedings quashed. Why was Congress happy so long as Dave was CJM? Why are they bringing up this matter now a new CJM has been appointed?

"A person having extremely sentimental nature would be shocked even if imputations is hurled not upon him, but on others,

Nonsense! Sentimental people are not shocked by imputations hurled against Jack the Ripper.

 such a person can't be termed as person aggrieved of the offence. The person would be aggrieved, if imputation is against him individually or as a member of a company, an association or collection of persons, that collection of persons being a definite, well-defined, identifiable, determinate group..."

People with the surname Modi are an easily identifiable group. It is obvious that a politician is harmed if people think he is likely to be a thief. 


4. Trial court has not dealt with Modis as a Modi Samaj; complainant was not defamed as member of the Modi Samaj


Gandhi has stated there is no Modi Samaj or community established on record for him to have defamed an entire community.

Sadly, his own lawyer- though surnamed 'Panwala'- says he is himself a Modi. 

"The Modh Vanik Samaj and Modh Ganchi Samaj are the communities which are existing for years together. The constitution and other documents relating to the Modh Gachi Samaj or Modh Vanik Samaj have been brought on record and an attempt is made to show that they exist for a long time. But in these documents produced by the respondent/complainant, there is nowhere mention of Modi Samaj."

Suppose I were to say 'All Americans are rapists'. I have defamed both North Americans  and South Americans.

He adds that it is widely known that the surname ‘Modi’ is used even within Muslims and Parsis, besides a number of Hindu castes.

Including castes which are referred to as 'Modi'. 

The plea further states,

"Modis are 13 crores and obviously as per the ratio of the aforesaid judgments all 13 crore people will not have a right to file the complaint because it is not identifiable, definite, determinate group or collection of persons..."

What is more definite and identifiable than one's surname? You may not know my religion, but you defame me if you say 'all Iyers are brilliant'. The fact is, almost all Iyers are as stupid as me. We should get Extremely Educationally Backward- not to say downright Retarded- Status with retrospective effect.


5. Complaint is politically motivated

This is no bar to a criminal action.

The plea points out that Purnesh Modi's complaint was filed in hot haste with a view to use the same for electoral purposes in the run-up to the 2019 Lok Sabha elections.

If it was filed 'in hot haste' it is reasonable to conclude that Purnesh Modi felt his own re-election was in danger because people might believe he was a thief. 

"It is obvious to a critical reader of the complaint and the evidence that the real grievance was the factum of the alleged speech being sharply critical of the head of the Government...

It is not criticism to say of a man known to be honest that he is a thief. It is mere vulgar abuse. However, the PM can afford to ignore Rahul because everybody knows the PM's family has not become rich. Purnesh Modi may not have had that luxury. 

The complainant admittedly was an MLA of the Bhartiya Janata Party at the relevant time and was in-charge of the election to one of the Lok Sabha constituencies, which followed after the alleged speech."

Thus he had locus standi. His own reputation and professional career were placed in jeopardy by Rahul's reckless act of criminal defamation and collective denunciation. 


6. Perfunctory manner of determining sentence "shocking"


The plea states that the offence of defamation falls within the category of ‘summons case’ as defined in Section 2(w) of the Criminal Procedure Code, 1973. However, in the present case, the procedure of a ‘warrant case’ was adopted.

Nonsense! 'Warrant- case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. This was a summons case because maximum penalty was two years. 

"A summary inquiry was held on the question of appropriate sentence. The issue of grant of probation, which is mandatory in a case like the present one, does not even find a passing reference in the order of sentence and the Ld Trial Court proceeded to award the maximum punishment without giving any adequate opportunity to the parties to assist the Court in this regard."

This is hilarious. Probation is for young people who may be reformed by a sympathetic Probation officer who sits down with their Mummy and sets a curfew for them so they don't roam around on the streets at all hours getting up to mischief.

Rahul's own lawyers think he is a juvenile who needs a Probation officer and a 'supervision order' and regular lectures on the need to avoid drugs and giving blow jobs to random dudes you meet when doing some Yatra or the other. 

Further, immediately on pronouncing Gandhi guilty, without giving him an opportunity of composing himself, assessing the situation and consulting the lawyer, the court asked him to make his submissions on the question of sentence.

Rahul is just a young boy. It isn't as though he were a 52 year old with an MPhil from Cambridge. Judge should have given him a nice coloring book and then appointed a Probation officer who would sit with him and gently discourage him from eating his own feces. 

Still, following Santa Singh (1976) Rahul's lawyer should have prepared him to make a submission assuming the harshest penalty- i.e. 2 years imprisonment. He should have said 'don't send me to prison. I need to serve my constituency. Also, Mummy will cry and cry.' The Santa Singh judgment points out that the criminal has 'diseased mind' and the aim of the Court must be to rehabilitate him. Anyway, Rahul is just a little baby so there should have been a pre-sentence report.

"The sentencing order does not even show that the Ld Trial Judge took into consideration the fact that the accused was being awarded the maximum permissible sentence of imprisonment."

No. It shows that the judge knew he was handing down the maximum sentence in the hope that this would bring Rahul to his senses. His lawyers could have filed a revision petition immediately.

Gandhi has also referred to a part of the judgment in which the trial court referred to an instance when the Supreme Court admonished him. Taking exception to this, the plea states,

"The Ld. Trial Judge hastily referred to a case where the Hon’ble Supreme Court statedly admonished the Petitioner. No attention was given to the fact that the Petitioner was a first-time offender.

 He never appeared before the Supreme Court in that case as an offender charged with an offence. The order of the Hon’ble Apex Court did not in any manner provide admissible or relevant material for the Ld. Trial Judge to proceed to award exemplary punishment using the same as crutches."

Rahul is not a first time offender. If his conviction stands then this will be his first conviction. Plenty of others will follow in other cases anterior to the filing of this case. Moreover, the Supreme Court's admonition was a matter of fact, not law. Rahul had been admonished that 'collective denunciation' was actionable. He disregarded this admonition. He is showing obstinacy in not apologizing. Thus the trial will drag on and there will be many more like it. 


7. Judge should have been aware that two-year sentence would lead to disqualification

As should Rahul and his lawyers. He should have had his submission in his pocket to read out to the Magistrate. 

Gandhi has argued that the judge failed to refer to any precedent where in an offence of defamation, the maximum sentence has been imposed to support the finding of sentence.

There can be no precedent because only Gandhi is the hereditary leader of a political party with 45 million members. The thing is sui generis.

The judge had taken the view that a Member Parliament deserves to be awarded the highest punishment because of his status. On this aspect, Gandhi stated,

"It is therefore expected that the Trial Judge would also be aware of the consequences of awarding a sentence of two years, namely mandatory disqualification. Such disqualification entails the rejection of the mandate of the electorate at one hand and huge burden on the exchequer on the other. It is therefore expected that the Judge would make a mention of a consequence of this nature in the sentencing order." 

There is no such requirement. It is obvious that Rahul could greatly reduce the quantum of punishment by apologizing. Instead his lawyers are pretending he is a mixed-up teenager who should be put under a supervision order so as not to roam around the streets sucking off all and sundry. There is no great burden on the exchequer in running a by-election. On the other hand, Rahul's refusal to apologize is imposing a burden on the judicial system. 

Other newspapers covering the case reiterate the points made above.

Referring to the magistrate's court view that he deserved to be awarded the highest punishment because of being a member of Parliament, Gandhi said he was treated harshly by the court at the stage of determination of sentence taking into account his position as a member of Parliament.

The Judge said that Rahul, precisely because he was a MP, should be held to a higher standard of accountability. Furthermore, he had been admonished by the Supreme Court on two separate occasions for 'collective denunciation' and a reckless disregard for the truth. 

He said the trial judge was "overwhelmingly influenced" by the status of the applicant as a member of Parliament and "certainly presumed" that the award of maximum sentence of two years would entail disqualification.

In other words, Rahul would be forced to apologize just as he had apologized to the Supreme Court. However, it is quite likely that the Bench will back down. They may get rid of criminal defamation just as they have put the sedition law in abeyance on the Government's request.

“The judgment of conviction and order of sentence passed by the CJM (Chief Judicial Magistrate) is erroneous, patently perverse, in flagrant violation of principles of appreciation of evidence in criminal trial, illegal and unwarranted on the facts and circumstances of the case and on the evidence to substantiate the charge levelled against the appellant/accused," said Gandhi in his petition in the sessions court.

The problem here is that the CJM's verdict was based on two High Court orders. In particular, the H.C quashed a decision made by the previous CJM re. admissibility of electronic evidence. It pointed out that the S.C's ration in 'Ajrun Pandit' should have been followed. If Rahul had no intention to malign the Modi community why not apologize for having misspoken and having created that impression? The answer is that Rahul thinks Gandhis never apologize. Yet Indira apologized for the Emergency era atrocities in 1978. 

The Congress leader said the far-reaching implications of the sentencing, i.e mandatory disqualification from Parliament, would have been in the knowledge of the trial court.

Indeed. But MPs who go around maligning entire communities and whipping up hatred against them should be disqualified. They should be sent to jail. That is what the law envisages. 

He said the excessive sentence was not only contrary to the law but was also unwarranted given the overriding political overtones in the present case.

Murder is murder even if done for a political reason. The same is true of criminal defamation. However the Bench may decide to do away with that offense. But this would make minorities more vulnerable. The Gandhis themselves may be furiously attacked as foreign agents looting the country. They may be  assassinated. 

Gandhi submitted that such disqualification entails the rejection of the mandate of the electorate on one hand and a huge burden on the exchequer on the other for holding bypoll.

This is irrelevant. Voters can't give anybody a mandate to break the law. However, the law may be changed. The Bench may back down. 

The Congress leader said the defamation complainant is not maintainable as the complainant is not a person aggrieved and there is no determinate group of persons here to allege defamation. 

Sadly, Rahul's own lawyer said he himself belonged to the Modi community. However, unlike most Modis, he himself preferred Congress to the BJP. Still, the man was admitting there was a 'determinate group of persons' who were defamed. Rahul said only Modis are thieves and a little digging would show many Modis were actually thieves. Thus, statistically speaking, any given Modi was more likely to be a thief than a non-Modi. To be on the safe side, don't transact business with them. 

He maintained the trial court erred in believing the accused didn't stop after allegations against Prime Minister Narendra Modi, and industrialists Nirav Modi, Lalit Modi, Mehul Choksi and Vijay Mallya, and therefore he intended to defame all persons with the Modi surname.

If that was not his intention why not apologize for creating that impression? Politicians do so all the time. When Modi withdrew the farm bill he offered a fulsome apology. This showed his humility and restored his popularity.

The said sentence, "Why all thieves have surname Modi," was spoken in connection with PM Modi, Nirav Modi and Lalit Modi, and not people with the "Modi" surname, according to the plea, and that there is no such thing as a definite Modi samaj or community on record. 

If so, why not apologize for creating that impression by saying 'if you search a little you will find many more Modis are thieves?' 

He said the complainant terms the Modh Vanik Samaj or Modh Gachi Samaj or Teli Gachi Samaj as Modi samaj, even when there is no documentary evidence on record that they are all part of the Modi samaj.

This is false. The Economic Times reports

"The Social Welfare Department of the Gujarat Government had passed a notification on July 25, 1994 which included 36 castes as OBCs and at number 25 (b) Modh-Ghanchi caste has been mentioned to which Narendra Modi belongs. The caste has been included amongst OBCs.

"There are Modis in every community. There is no organization of persons having the surname Modi.

Google it. You immediately find a Samasta Gujarati Modh Modi Samaj Trust, There may be several other such organizations.

 There is no particular group of Modis which is referred to in the impugned defamatory statement as distinguished from the rest of the Modis," he said.

Yes there is. Rahul isn't saying all Modis are thieves. He is saying all thieves are Modis and if you dig a little you will find more and more Modis are actually thieves. This means there is a group of people- those with Modi as a surname and those who belong to that caste and thus who could have Modi as a surname- who are statistically more likely to be thieves than any non-Modi. 

"Modis are 13 crores (in number), and all these people will not have a right to file the complaint because it is not an identifiable, definite, determinate group or collection of persons," said the Congress leader.

Yes they will. Two Modis who have done so are BJP politicians. It is obvious that they are materially affected, by the statement of a leader of a party with 45 million members, that they are statistically more likely to be thieves. Most Modis may not have the resources to fight a court case in this matter. But two have done so. 

Rahul should apologize that he misspoke. He should say the vast majority of Modis are honest and decent. In that case, it is likely that he will be let off with a small fine. Instead, like Prashant Bhushan, Rahul is defying the Courts in the belief that they will back down. But, if the Supreme Court does so, it is likely that the offense of 'criminal defamation' will fall into abeyance. In any case, what is sauce for the goose is sauce for the gander. If Rahul can malign an entire community, his own family can become the target of not just legal action but assassination attempts by those who believe they are foreign agents in cahoots with anti-national elements so as to loot the country. 

Rahul is playing with fire. He doesn't understand that Prashant Bhushan is a failed politician whose reputation for legal acumen has been destroyed by his own intemperate language. Showing yourself to be equal to Bhushan is foolish. He is now a laughing stock. There is no prospect of his reviving his political career. Unlike his father- who was the lawyer who got Indira Gandhi disqualified- Prashant won't become Law Minister. He won't even get to be an MLA or a Rajya Sabha member nominated by some casteist and crooked party.

Congress is showing slavish devotion to its Clown Prince. This will damage its prospects in the 2024 General Elections. However, Kharge is expected to win big in Karnataka. This will be taken as a sign of a 'Rahul wave'. But Modi is keeping his powder dry for the 2024 campaign. That is sensible. Sensational allegations lose their ability to influence people if they are repeated ad nauseam and thus become stale. The plain fact is that the Adanis have ridden out the storm. Had they collapsed it would have harmed the Indian economy and so, one way or another, Congress would have had a stick to beat Modi with. But, by 2024, as more and more Adani projects rise up in Opposition ruled states, people will be sick and tired of Rahul's crazy attempt to suggest that Modi has the hots for Adani and thus showers him with wealth. In India, people know that oligarchs buy politicians. Politicians don't enrich oligarchs just because they like the cut of their jib. They want money for their family. Modi has no family. Thus he is immune from suspicion. By contrast, the Gandhi family has unjustly enriched itself to the tune of billions. It has turned the INC into its own personal property. One way or another, the dynasty will be held to account.