The editor of the leaflet, V. Venkatesh, writes in the Wire-
The 8th Additional Sessions Judge, Surat, Robin P. Mogera, in his April 20 order dismissing Rahul Gandhi’s appeal seeking suspension of his conviction and sentence in the defamation case relied on a crucial Supreme Court order
No. He referred to it. Had he stayed Rahul's conviction one might suppose he relied on it. But, since he didn't stay the conviction, he could not possibly have relied upon it. Rahul's supporters are clutching at straws. The fact is an apology from Rahul would show there was no intention to abuse a large class of people who, his own lawyer, described as pro-BJP.
The apex court order gave relief to Bharatiya Janata Party (BJP) MP, who was not, unlike Rahul Gandhi, disqualified following his conviction under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
That conviction was overturned. The MP in question had moved the High Court and then the Supreme Court with lightning speed. The MP paid off the complainant. Still, the Parliamentary Secretariat did not disqualify the MP immediately as it should have. Perhaps the EC had not given the required directive. Still, Congress raised a hue and cry about this and so the Secretariat resolved to act expeditiously in future. Nevertheless, no great harm was done, the whole thing was over in 16 days because the Apex Court quashed the conviction. Rahul and his lawyers have dragged things out. Moreover, Congress is seeking to make political capital out of it.
The allegation against Kachhadiya was that he along with four other accused persons assaulted Dr. Bhimjibhai Laljibhai Dabhi, while he was on duty. The doctor then filed a complaint against Kachhadiya and the other four accused persons. A charge-sheet was filed against the accused under Sections 332, 186 and 143 (and other sections) of the Indian Penal Code (IPC) and Section 3(1)(x) of the 1989 Act.
Kachchadiya’s conviction remained for 16 days in 2016 till the Supreme Court suspended it. Yet, he was not disqualified from the Lok Sabha swiftly, as happened in the case of Rahul Gandhi. Kachchadiya claimed that he could evade disqualification, because he moved the courts promptly after his conviction, unlike Rahul Gandhi.
That is irrelevant. It was the EC and the Parliament Secretariat which should have acted. Congress complained about it at that time. That's why they acted quickly in Rahul's case.
The Supreme Court’s order in the case of Naranbhai Bhikhabhai Kachchadia vs State of Gujarat was pronounced by a two-judge bench of Justice Madan B. Lokur and Justice N.V.Ramana on April 29, 2016.
The sentence awarded by the trial court after the conviction was three years’ imprisonment for the offence punishable under Section 332 of the IPC and six months’ imprisonment for the offence punishable under Section 143 of the IPC. The sentences were to run concurrently.
The Gujarat high court admitted Kachchadia’s appeal and stayed his sentence.
The Supreme Court’s order noted that the high court declined to stay the conviction on the ground that an exceptional case was not made out by the appellant. The Supreme Court bench also noted that in terms of Section 8 of the Representation of the People’s Act (RPA), 1951, the conviction entails his automatic disqualification for a period of six years from the membership of parliament.
The Supreme Court bench noted in its order that a compromise was entered into by the five accused persons with the victim, Dr. Dabhi, on April 1, 2016, which was before the conviction.
A copy of the compromise was on record and was also filed in the Court of Special Judge of Amreli, Gujarat, which convicted the MP. Pursuant to the compromise, the accused persons as well as the victim, Dr.Dabhi, appeared before the Special Judge at Amreli and stated that the compromise had been arrived at wilfully and without any kind of pressure.
However, since the offences were not compoundable, the Special Judge was unable to act upon the compromise, the Supreme Court order noted.
The Supreme Court bench then heard the counsel for the parties on the issue of whether the proceedings against the appellant should be quashed in view of his acquittal on a more serious offence under Section 3(1)(x) of the Act and the compromise as well as in view of the further statement made on behalf of the appellant in the Supreme Court that he was prepared to pay compensation to Dr.Dabhi (the victim) and also furnish a bond of good behaviour to the satisfaction of the Special Judge at Amreli. The bench then found that this was a fit case for quashing the proceedings initiated against the appellant.
So, an MP who acts quickly to appease the complainant and to move the apex court for acquittal would only suffer a disqualification of a couple of weeks. Rahul could have done the same thing. He could have apologized to the Modi community, paid the complainant's costs and approached the apex court quoting this precedent. The Bench has 'inherent jurisdiction' and discretionary powers. In Rahul's case, they may have repeated their admonition to him to avoid 'collective denunciation' and he would have paid a small fine and been reinstated by now. But Congress gains more by the drama of showing the poor boy being chucked out of his house and having to move back in with Mummy.
Judge Mogera as well as the complainant’s counsel correctly relied on this order to distinguish it from the case of Rahul Gandhi. Curiously, however, both the Judge as well as the counsel of the complainant ignored the reasoning in the Supreme Court’s order.
The reasoning was that the more serious complaint had been withdrawn. Some other type of proceeding might continue to wind itself through the lower courts but the fellow could go back to work in the meantime.
In their order, the Lokur-Ramana bench reasoned that adverse consequences would certainly follow not only to the appellant but also to his constituents in case the conviction remained. “The impact would virtually be irreparable,” the Judges recorded in their order.
This was obiter dicta, not ratio. These guys weren't crazy enough to think that a guy who had actually committed an atrocity on an SC or ST could safely remain in Parliament. But the same is true of a guy who abuses an OBC group. The plain fact is that nobody believed any caste based victimization had occurred. But, if Rahul apologizes in a fulsome manner, the same would be true of the defamation case. People would say- 'he misspoke. You can see on Youtube that he himself is now saying he thinks Modis are lovely people and that it is sad that one or two bad apples are spoiling the reputation of a noble and upright caste.
More importantly, the bench considered the “somewhat exceptional consequence of the disqualification of the appellant from representing his constituents in Parliament for six years and no special reason was given (by the trial court) for awarding the maximum punishment to the appellant”.
Again, this is obiter dicta not ratio. It is not the case that an MP who commits an atrocity on an SC or ST or interferes with them in the performance of their duty because of the community they belonged to by birth, will be spared even if millions of people depend upon him for some important service.
The ratio of the order is
1) it was 'a fit case for quashing the proceedings initiated against the appellant.'- i.e. there was no atrocity against anyone of lower caste.
In arriving at this conclusion, we have taken into consideration the following factors : (i) The appellant was acquitted of a more serious offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; (ii) The compromise entered into between the parties; (iii) The unconditional offer of compensation by the appellant to the victim; (iv) The unqualified acceptance of the condition by the appellant of submitting a Bond of good behavior; (v) The somewhat exceptional consequence of the disqualification of the appellant from representing his constituents in Parliament for six years; and (vi) No special reason was given for awarding the maximum punishment to the appellant.
In other words, the guy wasn't guilty of anything for which he could be sent to jail. Moreover he had compensated the complainant- there was no civil suit. True there was some other case crawling its way through the lower courts but that was no reason to bar the guy from doing his job. Also the lower court should have given a reason for awarding the maximum punishment.
Justice Mogera has given a reason for the award of the maximum punishment. Rahul hasn't squared the complainant. He has issued no apology. He hasn't knocked on the door of the apex court. Why? He is seeking to make political capital out of this. He is perfectly entitled to do so. Indeed, he can go dare the Court to send him to jail. The Supreme Court will promptly reverse Subramaniyam Swamy (2016) and criminal defamation will go the way of sedition or the ban on sodomy.
The bench thus quashed the prosecution against the appellant only but made it clear that he would pay to Dr.Dhabi an amount of Rs 5 lakh by way of compensation within a period of one week and would also furnish to the satisfaction of the Special Judge at Amreli a bond for good behaviour for a period of one year within one week from the date of the order. The Special Judge was asked to ensure compliance and inform the Court accordingly.
In other words, there is no similarity between the two cases. Rahul is being obstinate. Otherwise he too would have gained relief from the top court.
Judge Mogera’s order, after referring to the Supreme Court’s order, said selectively: “Supreme Court, while allowing appeal had not disturbed or quashed the finding of the High Court, but the appeal was allowed based on the above circumstances”. Judge Mogera’s order also got the case number wrong: it is Criminal Appeal No.418 of 2016, and not Criminal Appeal No.481 of 2016, as mentioned.
Admittedly, this is strange. But this does change the legal position. Rahul needed to get the complainant to drop the matter. A fulsome apology to the Modi community would, in any case, have got rid of the supposition of deliberate malice.
Obvious flaws in Mogera’s order
Judge Mogera referred to Paragraph 10 of the Supreme Court’s judgment in Navjot Singh Sidhu’s case (2007) which held that it is not necessary to minutely examine the merits of the case, for the purpose of staying or suspending the order of conviction.
the fact that something is not necessary does not mean it is not permissible
However, Judge Mogera did exactly that, just as the Supreme Court bench which heard Sidhu’s case considered it proper to refer to the evidence, which it claimed, had an important bearing on the nature of the offence, committed by him.
Because the Bench has wide discretion.
In doing so, Judge Mogera has repeated a factual inaccuracy in describing Rahul Gandhi’s alleged offence,
What words were used is a matter of fact. What was meant by those words is a matter of interpretation. Here a 'reasonable man' test may be applied.
like many others. Rahul Gandhi’s speech during the 2019 election campaign at Kunar, a village near Bengaluru, has been cited to allege defamation. The question asked by Rahul Gandhi, “why all thieves are having the surname of Modi?” was repeated by Judge Mogera, without the context which preceded the question.
Rahul had mentioned three people with that name- none of whom have ever stolen anything- and then said said that all thieves have the surname Modi. This means, statistically speaking, a man with that surname is more likely to be a thief. However, since people belonging to the Modi caste are more likely to have that surname, it also defamed them.
It is enough to say there is a greater probability for a person belonging to an identifiable group to be a thief or a rapist or terrorist- for every member of that community to be adversely affected more particularly where the statement is made by the hereditary Il Duce of the Fascist Congress party.
If one considers the context, it is clear that Rahul Gandhi actually expressed his surprise why the three, Nirav Modi, Lalit Modi and Narendra Modi share the surname, Modi.
This is only clear to people who think the lad has the IQ of a three year old who is surprised that he has the same surname as his siblings and paternal relatives. On the other hand, Venkatesh may be Tamil. We use our own given name as our second name and keep the father's name as the initial. But many Tamils- e.g. Iyers like me- use our caste name as our surname.
It is useful to recall the exact words spoken by him, as reproduced by the Indian Express.
“One small question, how are the names of all these thieves ‘Modi, Modi, Modi’… Nirav Modi, Lalit Modi, Narendra Modi, and if you search a little more, aur bahut saare Modi niklenge (many more Modis will emerge).”
None of them are thieves. Unlike the Gandhi family, Modi has not enriched himself. Lalit Modi left India claiming fear of assassination. He and Nirav may or may not be guilty of fraud. They are not thieves.
However, the proper translation of what Rahul said is 'Why are all thieves having this surname- Modi, Modi, Modi- search a little and many more thieves will turn out to be Modis.
It is clear that Rahul Gandhi mentioned “these thieves” and not “all thieves”.
This is not clear at all. Translation is a matter of interpretation. What would a 'reasonable man' have taken Rahul to be saying? The answer is that thieves are Modis. Dig a little and more and more Modis will be discovered to be thieves.
The distortion of what exactly he said makes all the difference in the context of defamation being a criminal offence. The phrase “these thieves” refer only to the three, namely, Nirav Modi, Lalit Modi and Narendra Modi.
None of whom are thieves. The aim is defamatory against those with that surname. But anybody who could have that surname- by reason of belonging to a caste named Modi- is, if you search a little, discoverable to be a thief.
Rahul Gandhi’s question made sense because, in the very same speech, he had repeated the allegations against them, which were already in the public domain, in public interest.
Rahul was repeating his own allegations backed up by the 45 million fanatical members of his Fascist outfit.
After all, the First Exception to Section 499, Indian Penal Code, says it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. The First Exception adds that whether or not it is for the public good is a question of fact.
It is a fact that Modi has stolen nothing. The Dynasty has unjustly enriched itself on a colossal scale.
Rahul Gandhi’s following statement – “If you search a little more, many more Modis will emerge – is not as defamatory as it is alleged. It is because he has clearly hinted that it requires search, and while he meant that it would yield more Modi surnames, he did not clearly suggest that these surnames would also belong to the same category as the three Modis. He was clearly entitled to the benefit of doubt insofar as this phrase is concerned.
If so, why does he not say so? The answer is that it would look like an apology and 'Gandhis don't apologize' though Rahul had apologized to the Supreme Court quite recently.
Judge Mogera, after recounting the complainant’s counsel, Harshit Tolia’s contentions, based on an incorrect reproduction of Rahul Gandhi’s speech, acknowledges that if he dealt with this issue in detail, it would cause prejudice to the parties at the time of the final hearing of appeal. Yet, he reached the conclusion that “such defamatory remarks would have certainly harmed his (the complainant’s) reputation and caused him pain and agony in society”.
Prima facie, that is indeed the case. The plain fact is, Rahul's lawyers dragged their feet in this matter while Congress is clearly making political capital out of it.
Judge Mogera did so only because the complainant, Purnesh Modi is an ex-minister and involved in public life. Clearly, while judging whether the trial court correctly decided the maintainability of the complaint, Judge Mogera considered only the complainant’s position in the society, rather than his tall claims about Rahul Gandhi’s remarks having wounded the pride of all Modis.
Was there an intention to do so? Absent an apology- yes. Political advantage can be gained by whipping up hate against particular groups of people. Rahul is a politician. He seems to be doing well out of this drama. Imagine the boost in Congress's prospects if he manages to get hauled off to jail just before the elections.
Judge Mogera, in order to rebut Rahul Gandhi’s senior counsel, R.S. Cheema’s questioning of the trial court’s findings about his speech, went into great detail about the reliability of evidence, though he could have avoided doing so at this stage, going by his own reliance on the Supreme Court’s guidelines not to do so in Sidhu’s case.
Mogera is a cut above and this is his chance to shine.
Sidhu’s case
In Navjot Singh Sidhu vs State of Punjab (2007), the Supreme Court suspended the conviction and sentence of Sidhu in a road rage case in order to enable him to contest the Amritsar Lok Sabha by-poll. Sidhu was a sitting member of parliament, who after being convicted and sentenced, resigned from his seat on moral grounds and expressed his desire to go to the people for a fresh mandate in changed circumstances.
Sadly, British era laws were used to persecute a Lion of Punjab who had beaten an elderly man to death. Needless to say Sidhu felt entitled to the CM seat for this great achievement of his.
It was argued that in order to maintain the purity and probity of democratic institutions, the criminalisation of politics should be stopped and the persons who have been convicted of any offence should not be allowed to enter parliament. Disagreeing with this contention, the apex court observed that the court has to interpret the law as it stands and not on moral considerations which may be perceived to be morally more correct or ethical.
But the Bench has taken no action in this particular case though it could easily assert inherent jurisdiction on a suo moto basis.
In the court’s view, Sidhu had set a high standard in public life by resigning from his seat and seeking to get a fresh mandate from the people. If he had been elected, he would certainly have the greater moral authority to represent the constituency, it reasoned. Thus it stayed his conviction and sentence and allowed him to contest the election.
The Supreme Court in the Sidhu case further observed that if the relief prayed for was not granted, he would suffer irreparable loss as he would not be able to contest for the seat which he held and had fallen vacant due to his voluntary resignation which he did purely on moral grounds. Ironically, Judge Mogera did not find this part of Sidhu’s judgment of the apex court useful in his order.
The Supreme Court reversed itself on the basis of 'error apparent' when it reversed itself and sent the fellow to jail. The truth of the matter is that India has a shitty Apex Court. It should quietly reverse Lily Thomas and Swamy and give up the collegiate 'Uncle Judge' system.
The court considering the petition for suspension of conviction and sentence, as a rule, cannot go into the evidence on the basis of which the accused was convicted. For, it would affect the ultimate consideration of appeal in view of the observation made in the suspension petition. However, the Supreme Court, on the contrary, examined the evidence touching upon the criminality of the appellant in Sidhu’s case.
Because there is no higher court- though, no doubt, that bunch of cretins will just keep reversing themselves.
The Supreme Court in the Sidhu case examined the relevant pieces of evidence touching upon the guilt of the appellant and found it prima facie in his favour. This observation of the court, however, did not affect the ultimate consideration of his appeal.
But, since then, the Apex Court has sent Sidhu to jail. It truly is shit.
Other flaws in Mogera’s reasoning
Judge Mogera has uncritically accepted the complainant’s claim that Rahul Gandhi, after failing to challenge the lack of territorial jurisdiction earlier, could not, at the belated stage of the trial, allege that it was being vitiated for the same reason.
Because Rahul is an indigent who can't afford to travel to Gujarat.
Judge Mogera has erroneously assumed that the sentencing discretion of the trial Judge is guided by the status of the accused in society, rather than the severity of the offence alleged.
Though defamation does little damage if it is done by an indigent hobo.
Judge Mogera said that as Rahul Gandhi was not an ordinary person and was a sitting MP, connected with public life, any word spoken by him would have a large impact in the mind of the common public.
His lawyers should have argued that Rahul is widely known to be an imbecile.
As a high standard of morality is expected from him, the trial court had inflicted the maximum sentence under the law, he has held.
Rahul should be allowed to say all terrorists belong to a particular community- right?
His understanding of the sentencing discretion is completely misconceived. A sentencing Judge ought to consider the quantum of the sentence in proportion to the gravity of the offence. The gravity of the offence is not enhanced by the mere fact that the accused is not an ordinary person. Such an understanding of the sentencing discretion is against the rule of law.
No. The remedy is to knock on the door of the Supreme Court.
Judge Mogera, while disputing Rahul Gandhi’s plea that not staying the order of conviction would cause him irreparable and irreversible injury, ignored the reasoning adopted by the Kerala high court recently, while giving similar relief to Lakshadweep MP Mohammed Faizal, in an attempt to murder case.
But Faizal genuinely didn't want to be disqualified and so his lawyers did the needful to get him back into Parliament.
The high court, in this case, reasoned as follows: “ The next general election to the Parliamentary Constituencies in India is required to be held in the year 2024. If the election to the constituency of Lakshadweep is to be held immediately on account of the conviction and consequent disqualification of the second petitioner, the financial burden upon the Government and indirectly upon the people is immense. Even after incurring enormous expenditure for the election, the elected candidate will have a term of only a period of fewer than fifteen months. The aforesaid irreversible outcome cannot be ignored by this Court since the consequence of not suspending the conviction is drastic. No doubt, the case falls under the category of rare and exceptional situation warranting a suspension of the conviction.”
Either the MP in question is a thug who tried to kill a rival- in which case he should be disqualified- or else there is no admissible evidence to prove he is not completely innocent- in which case he should be acquitted. Indian Judges should not be forced to 'show application of mind' by making ridiculous arguments like the above. It is better than a constituency have no MP than that a killer continue to be a lawmaker.
Rahul's case is different from the others Venkatesan refers to because there is no doubt that Rahul did the thing he is accused of. Yet, if Rahul says he misspoke and if he offers a fulsome apology to the Modi community, then his position is exactly similar to the MP who was not disqualified because he had come to terms with the complainant. It is one thing to say that a Judge could have availed of a loophole to acquit Rahul- indeed the first judge was inclined to do so but was prevented by two High Court orders procured by the complainant- but quite another to suggest that something illegal occurred because a Judge did not use a loophole you believe to exist to deliver the verdict you want.
No comments:
Post a Comment