Rahul defamation case: Amend law to protect MPs, MLAs

Rahul Gandhi’s speech in Kolar, Karnataka, led to his conviction by a Chief Judicial Magistrate (CJM) in Surat, Gujarat. He was sentenced for two years in a proceeding for criminal defamation. The process which led to his conviction and the conviction itself have raised issues that need to be addressed both from the point of view of law and politics.

Before delving into any of these issues, let us first understand what Rahul Gandhi said on April 13, 2019, while addressing a rally in Karnataka: “I have a question. Why do all of them—all of these thieves—have Modi Modi Modi in their names? Nirav Modi, Lalit Modi, Narendra Modi. And if we search a bit more, many more such Modis will come out.”

For what he said, a former Gujarat minister and BJP MLA, Purnesh Modi, chose to prosecute him for criminal defamation on April 16, 2019. On the face of it, the statement cannot be regarded as an affront to the entire “Modi community”. Rahul Gandhi merely asked why all those alleged “thieves” have “Modi” attached to their names. Nirav Modi and Lalit Modi are known to be on the government’s radar. Both have chosen not to come back to India. Rahul Gandhi did not say that every Modi is a thief. He only asked why “these thieves” have “Modi” attached to their names. Any conviction on the basis that Rahul Gandhi defamed the entire “Modi community” is suspect. Besides, there is no such identifiable “Modi community” which could be aggrieved by what Rahul Gandhi said.

Rahul Gandhi appeared for the first time before the CJM’s court in Surat on June 24, 2021, to record his statement in person. In March 2022, the complainant requested that Rahul Gandhi be summoned again. The court, rejecting the request, insisted that the complainant proceed to address the court on the merits of the case. Interestingly, the complainant rushed to the high court and sought a stay of the proceedings before the trial court. On March 7, 2022, the trial was stayed. It is rare that a complainant, who seeks to prosecute, rushes to the high court to have the trial stayed unless he believes that there is little likelihood of his succeeding before the trial court.

The trial remained stayed for about a year. Curiously, the complainant withdrew his petition before the high court. Immediately thereafter, the trial resumed on February 27, 2023; this time, before another CJM, H H Varma. In between, Rahul Gandhi had been targeting a particular businessman, who has become the subject of controversy for his phenomenal rise as a businessman, and the wealth his companies have accumulated is allegedly attributed to his proximity to the prime minister. On March 8, 2023, Rahul Gandhi’s counsel challenged the locus of Purnesh Modi, claiming that Rahul Gandhi’s impugned speech targeted individuals and not the so-called “Modi community”. The quick withdrawal of proceedings in the high court, resumption of the trial, timing of the proceedings and sudden hearing of the matter raises questions, which in time, may perhaps be answered.

Admittedly, Rahul Gandhi does not reside in Gujarat. Criminal defamation should, if at all, have been filed in Karnataka. Purnesh Modi chose Surat perhaps with the expectation that he would be able to persuade the CJM to convict Rahul Gandhi. The procedure to be followed in matters where persons reside outside the jurisdiction of the court requires the magistrate to hold an inquiry before issuance of summons or for the CJM to direct an investigation. Neither was done. Besides, the Supreme Court itself has frowned upon using criminal defamation as a measure of harassment.

WATCH |

The substantive issue is whether such a law, which results in disqualification of a Member of Parliament, requires to be amended to provide safeguards to a sitting member. Even in the context of corrupt practices indulged in by candidates during electoral processes, the law allows the candidate to file an appeal but does not allow disqualification before the decision in the appeal. One can understand an MP or MLA being deprived of his membership if he is convicted for the offence of murder, which might visit him with a sentence of life imprisonment, or such other offences which are serious in nature for which the sentence provided is more than seven years. There, too, the law must provide for an opportunity to the convicted candidate to seek stay of conviction within a certain period, during which his or her membership of the House should not be subjected to disqualification.

An ordinance in 2013 sought to provide for a period of 90 days within which the convicted MP or MLA can seek stay of conviction to protect his or her seat in Parliament or Legislative Assembly. The ordinance did not become law and consequently, there are no safeguards for MPs or MLAs being convicted on the basis of frivolous cases. Recently, Abdullah Azam Khan lost his seat in the Uttar Pradesh Legislative Assembly pursuant to being convicted for a period of two years on the ground that he along with his father, Azam Khan, violated Section 353 and other provisions of the Indian Penal Code by sitting on dharna on a state highway in January 2008, thereby deterring the public servants from discharging their duty.

In case of Rahul Gandhi, the magistrate knew that any sentence of less than two years would have saved his membership of the Lok Sabha. The law needs to be amended. Not protecting an MP or MLA for a frivolous conviction like the one in the Rahul Gandhi case is grossly unjust. Today and since 2014, laws are being used for political ends and to settle political scores. That is a matter of concern not just with reference to Rahul Gandhi alone. Democracy can be subverted in many ways. Throwing out elected governments is one such way. Using judicial processes is another.

(Views are the writer’s)

Kapil Sibal
Senior lawyer and member of Rajya Sabha
(Tweets @KapilSibal)