Supreme Court stays conviction of Rahul Gandhi in defamation case for remark on Modi surname

The Supreme Court on Friday stayed the conviction and two-year jail term imposed on Congress leader Rahul Gandhi by a Gujarat court in a criminal defamation case for his remark "All thieves have Modi surname" [Rahul Gandhi vs Purnesh Ishwarbhai Modi and anr]..A bench of Justices BR Gavai, PS Narasimha and PV Sanjay Kumar said that the trial court did not give any specific reasons for imposing the maximum punishment of two years' imprisonment prescribed under the Indian Penal Code (IPC) for the offence of defamation though the offence is a non-cognizable one.The apex court further noted that that the ramifications of the ruling (of conviction) are wide and affect the rights of electorate of Wayanad, the constituency which Gandhi was representing as a member of parliament (MP) in the Lok Sabha. He had been disqualified from parliament after his conviction in the case."We are of the considered view that the ramification of subsection (3) of Section 8 of the [Representation of People] Act are wide-ranging. They not only affect the right of the appellant to continue in public life but also affect the right of the electorate, who have elected him, to represent their constituency. We are of the considered view, taking into consideration the aforesaid aspects and particularly that no reasons have been given by the learned Trial Judge for imposing the maximum sentence which has the effect of incurring disqualification under Section 8(3) of the Act, the order of conviction needs to be stayed, pending hearing of the present appeal," the top court ordered.With this order, Gandhi's membership to Lok Sabha from Wayanad would stand restored.Pendency of appeal would not come in way of appellate court in deciding appeal in accordance with law, the Court added.The Court in its order underscored that the trial judge was expected to give reasons for imposing maximum punishment for a non-cognizable offence."Except the admonition given to the appellant by this Court in contempt proceedings ... no other reason has been assigned by the learned Trial Judge while imposing the maximum sentence of two years ... Had the sentence been even a day lesser, the provisions of subsection (3) of Section 8 of the Act would not have been attracted. Particularly, when an offence is non-cognizable, bailable and compoundable, the least that the Trial Judge was expected to do was to give some reasons as to why, in the facts and circumstances, he found it necessary to impose the maximum sentence of two years," the Court said.The Court also noted that the Sessions Court and the Gujarat High Court too did not go into that aspect."Though the learned Appellate Court and the learned High Court have spent voluminous pages while rejecting the application for stay of conviction, these aspects have not even been touched," the order noted.At the same time, the Court also said that persons in public life should exercise caution while making statements."No doubt that the alleged utterances by the appellant are not in good taste. A person in public life is expected to exercise a degree of restraint while making public speeches. However, as has been observed by this Court while accepting affidavit of the appellant herein in aforementioned contempt proceedings, the appellant herein ought to have been more careful while making the public speech.".Gandhi moved the top court after a Magistrate court convicted him and a Sessions Court as well as the Gujarat High Court refused to stay the conviction.The Supreme Court had last month issued notice on the plea by Congress leader.Gandhi's plea before the apex court was limited to a prayer for stay on conviction and two-year sentence imposed by the Magistrate court..The Congress leader was convicted by a Magistrate court in Surat on March 23 for his remark that he had made at an election rally in Karnataka's Kolar constituency, in 2019.Gandhi had, in his speech linked Prime Minister Narendra Modi with fugitives like Nirav Modi and Lalit Modi.He had said,"Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?"The proceedings in the instant case arose after Purnesh Modi, a former BJP Member of Legislative Assembly (MLA), had taken exception to the the remarks in question, claiming that Gandhi humiliated and defamed persons with the Modi surname.The magistrate court accepted the contention of Modi that by his speech, Gandhi has intentionally insulted the people with a 'Modi' surname.In his 168-page judgment, Judge Hadirash Varma said that since Gandhi is a Member of Parliament (MP), whatever he says will have a greater impact. Thus, he should have exercised restraint, the Magistrate ruled.A sessions court in Surat had, on April 20, dismissed Gandhi's plea seeking suspension of his conviction by the Magistrate court.Gandhi then moved the High Court, which too refused to extend relief to him leading to the present appeal before the top court.Purnesh Modi in his counter-affidavit before the Supreme Court contended that Gandhi has remained arrogant and refused to apologise. In response, the Congress leader remained steadfast in his stance that he is not guilty of the offence of criminal defamation. He said that if he wanted to apologise and compound the offence, he could have done it much earlier.."My father, brother associated with Congress": Supreme Court judge Justice BR Gavai offers to recuse from Rahul Gandhi plea.During the hearing today, Senior Advocate Abhishek Manu Singhvi, appearing for Gandhi, said that 'Modi' is not a homogenous community and hence, the offence of defamation will not lie. "There is no uniformity, homogeneity. Then he (complainant) himself says he adopted the Modi surname later on," Singhvi said.He also emphasised that for the offence of criminal defamation to be made out, there should be an intention to harm the reputation of the "There is an explanation 4 in Section 499 IPC (which defines defamation). There needs to be intention to cause harm to reputation," he said.It was further pointed out that it is a non-cognisable offence and Gandhi was handed down the maximum punishment prescribed for the offence."In democracy we have dissent, in democracy we have disagreement. What we call 'shaleen' bhasha'," Singhvi argued..On the claims that Gandhi has criminal antecedents, it was pointed out that most of the case against have been filed by BJP office bearers or workers.Pertinently, there has been no conviction yet in any case, it was highlighted."Everybody aggrieved is a BJP office bearer or a karyakarta. But we are not on that. In the list of criminal cases, these are no conviction ones," Singhvi said.He also highlighted how the Magistrate Court cited a new case against Gandhi in its judgment though the complainant himself had not alleged that in his plea. "A new offence not alleged by complainant is found against me in para 43," Singhvi stated..Singhvi also alleged non-compliance with evidentiary law."Complainant says he got a WhatsApp of a newspaper cutting. That is the case. He does not say who gave it. Under 313 he records statement. The actual speech is not proved as per provisions of (Indian) Evidence Act," he said.There was no evidence of the speech until a witness named Ganesh Ghyanchi appeared on the scene, Singhvi elaborated."For 21 months he was not there, he is a BJP karyakarta who was invented," Singhvi said. "Not a karyakarta, he is an important functionary he says," Justice Gavai said."He came just to validate," replied Singhvi..Senior Advocate Mahesh Jethmalani, appearing for Purnesh Modi, said that Gandhi's intention was to defame everyone with Modi surname. "His intention was to defame every person with the surname Modi just because it is the same as that of a Prime Minister. You have defamed an entire class out of malice," Jethmalani said."How many politicians would remember what they spoke after addressing 10-15 gatherings a day," asked Justice Gavai."You (Rahul Gandhi) are facing a trial and there is evidence against you. This is an entire class defamed. It is an identifiable community," Jethmalani said.."At this stage we are not on the merits," the Court said."Law is well settled. You must have a very strong point to negate the sentence without reassessing evidence. Appeal is pending before sessions court. What is the tearing hurry," Jethmalani responded."One of the factors is .. if a constituency in parliament goes unrepresented, is it not a ground? There is no whisper by the trial judge for the need to impose the maximum sentence. You are not only affecting the right of one individual but an entire electorate of a constituency. Has he (Magistrate) touched on this? He says merely because one is MP it can't be grounds for special concession," Justice Gavai responded.Justice Gavai also said that the trial court has "preached" a lot."He gives quite a lot of preachings as to what is expected, makes an interesting reading. Some of the judgments coming from the Ld Solicitor General's State makes for interesting reading," Justice Gavai further remarked.Had Gandhi been given a sentence of 1 year 11 months he would not have been disqualified as an MP, the bench said."He has said Prime Minister was indicted by the Supreme Court in Rafale case. He said that the Court said 'Chowkidaar Chor hain'. He said if you go looking you will find more chors (thieves) named Modi. It is the right of a constituency to elect someone who is not a convict," argued Jethmalani.."What was the need for the maximum period of sentence," asked Justice Narasimha..Besides Senior Counsel Abhishek Manu Singhvi, Senior Advocates Rajinder Cheema, Prashanto Chandra Sen, and Harin Raval, and advocates Tarannum Cheema and Prasanna appeared for Gandhi.Purnesh Modi was represented by Senior Advocate Mahesh Jethmalani along with advocates PS Sudheer, Harsh Tolia and Mugdha Pande..[Read Order]