NEW DELHI, Aug 4 (PTI): In a significant relief to Congress leader Rahul Gandhi, the Supreme Court on Friday stayed his conviction in a 2019 defamation case over his Modi surname remark, paving the way for revival of his Lok Sabha membership.
The Lok Sabha speaker can now revive his membership on his own or Gandhi, armed with the apex court order, can seek restoration of his status as an MP.
A three-judge bench of Justices B R Gavai, P S Narasimha and Sanjay Kumar, while granting Gandhi the relief, said no reason was given by the trial court judge while convicting him except that he was admonished by the apex court in a contempt case.
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It said the least the trial court judge was expected to do was give some reasons for imposing the maximum sentence provided under the defamation act that led to Gandhi being awarded a term of two years in jail, having attracted the provisions of the electoral law that envisages automatic disqualification of an MLA or MP sentenced to two years in jail.
It said the appellate court and high court did not consider these aspects while passing orders denying Gandhi the relief.
The top court had closed the contempt proceedings against Gandhi for wrongly attributing to it his “chowkidar chor hai” remark against Prime Minister Narendra Modi in connection with the Rafale case, with a warning to be more careful in future, after the senior Congress leader tendered an unconditional apology.
The term of the 17th Lok Sabha ends in May 2024.
The top court said in so far as his conviction is concerned, it has considered that the sentence for an offence punishable under section 499 (defamation) of the Indian Penal Code is for a maximum period of two years imprisonment or fine or both, and the trial judge has awarded the maximum sentence of two years.
“Except the admonition by the Supreme Court in a contempt case, no other reason has been granted for this (conviction) by the trial judge. It is to be noted only on account of this maximum sentence imposed by the trial judge, provisions of sub-section (3) of Section 8 of the Representation of the People Act have come into play.
“Had sentence been a day lesser, provisions would not have been attracted, particularly when an offence is non cognisable, bailable and compoundable. The least the trial court judge expected was to give some reasons to impose a maximum sentence. Though appellate court and high court have spent voluminous pages rejecting stay on conviction, these aspects are not considered in their orders,” the bench said.
Referring to its earlier order in a contempt case against Gandhi, the apex court said while filing his affidavit in the contempt petition, he ought to have been more careful and exercised a degree of restraint in making such remarks which are alleged to be defamatory.
The apex court said Gandhi’s conviction and subsequent disqualification not only affected his right to continue in public life but also that of the electorate who elected him to represent their constituency.
“No doubt the utterances were not in good taste and a person in public life is expected to exercise caution while making public speeches. Taking into consideration these and that no reason has been given by the trial judge for imposing the maximum sentence, the order of conviction needs to be stayed pending final adjudication,” the bench said.
The top court clarified that the pendency of the present appeal will not come in the way of the appellate court in proceeding further with the appeal, which would be decided on its own merits in accordance with law.
“The parties would be at liberty to approach the appellate court for expeditious disposal of the appeal, which request would be considered by it, on its own merits,” the bench said.
As the hearing began, the bench asked senior advocate Abhishek Singhvi, appearing for Gandhi, and senior advocate Mahesh Jethmalani, representing complainant Purnesh Modi, to complete their submissions within 15 minutes each.
Initiating his arguments, Singhvi submitted Modi surname is not an identifiable class within the meaning of sections 499 and 500 of the Indian Penal Code who are authorised under law to file a defamation complaint.
He said it is for the first time that an amorphous group of 13 crore people (the Modis) have purportedly held themselves to be suing class.
Singhvi, clarifying that he was not arguing on the merits of the case, said the Modi, who is the complainant in the case, belongs to Modh Vanika Samaj.
“The persons who are named in one sentence in three-take speech are not concerned by this. Interestingly, persons who are aggrieved in this very small community of 13 crores, are BJP office bearers,” he said.
In that 13 crore, there is no uniformity, homogeneity, identifiability, no boundary line and, secondly, Modi himself said his original surname was not Modi but Bhutala, Singhvi said.
Contending that the necessary ingredient of ‘intention’ to attract defamation is missing, the senior lawyer said one of the witnesses has admitted in his deposition before the trial court that he is not aware of Gandhi’s intention to defame all people with the ‘Modi’ surname.
Singhvi submitted that awarding the maximum sentence of two years for criminal defamation is an extreme rarity when its a non-cognisable, bailable and compoundable offence.
He stated that the maximum sentence has the effect of “silencing” Gandhi for eight years, as it will disqualify him from elections as per the Representation of the People Act.
At this juncture, the bench said the trial court judge also talks about your (Gandhi’s) criminal antecedents.
Singhvi told the bench his client is not a hardened criminal and was never convicted despite several cases having been filed against him by BJP workers.
He said there was a contempt case in the top court in which Gandhi tendered an unconditional apology.
The senior lawyer also argued the consequence of Gandhi’s conviction is that a by-election will have to be notified for the Wayanad constituency.
“Election for Kerala seat has not been notified yet. Perhaps they know that chances of victory are less..I (Gandhi) have already lost two sessions of Lok Sabha. If the Supreme Court says no, I will lose the entire term,” Singhvi said.
The bench then asked Singhvi not to make the issue political.
Questioning the evidence of the speech submitted in the case, Singhvi said the complainant has not heard the speech on his own and his source of information is secondary which is a WhatsApp message and a newspaper article.
Countering his submissions, Jethmalani said there is a plethora of evidence against the former Congress president.
Jethmalani said the videos of the speech were produced as evidence before the court and a person who heard Gandhi’s speech, spread over 50 minutes, was produced as a witness.
He said ‘Modi’ was an identifiable class and every person having the ‘Modi’ surname has the right to file the complaint.
The top court remarked that the single judge of the high court says merely because one is an MP is not a ground to extend a concession.
Solicitor General Tushar Mehta urged the bench to not make “off-the-cuff remarks” on the Gujarat High Court.
“Sometimes, the Supreme Court criticises the High Courts for not giving adequate reasons and hence, High Court judges pass detailed orders,” he said.
The top court was hearing a plea by Gandhi challenging the Gujarat High Court verdict which dismissed his plea seeking a stay on his conviction in the defamation case filed by Purnesh Modi over his “Modi surname” remark.
Gandhi, who persistently refused to apologise for his remark, urged the Supreme Court to stay his conviction in the criminal defamation case stemming from his comment, asserting he is not guilty.
Purnesh Modi had filed the criminal defamation case in 2019 against Gandhi over his “How come all thieves have Modi as the common surname?” comment made at an election rally in Kolar in Karnataka on April 13, 2019.
The Congress leader was disqualified as a Member of Parliament on March 24 after a Gujarat court convicted him and sentenced him to two-year imprisonment for criminal defamation for comments he made about the Modi surname.
The high court had dismissed his petition for a stay on conviction, observing that “purity in politics” is the need of the hour.
A metropolitan magistrate’s court in Surat had on March 23 sentenced the former Congress president to two years in jail after convicting him under Indian Penal Code (IPC) sections 499 and 500 (criminal defamation).
Following the verdict, Gandhi was disqualified as an MP under the provisions of the Representation of the People Act.
