'Corrodes Foundations Of Democracy' : 10 Grounds Raised By Rahul Gandhi In Supreme Court For Stay Of Conviction In Defamation Case

Congress leader Rahul Gandhi has filed a special leave petition in the Supreme Court challenging the Gujarat High Court's refusal to stay his conviction in the criminal defamation case over 'Modi-thieves' remark, which resulted in his disqualification as a Member of Parliament. 

Here are the main grounds urged in his plea :

1. 'Modi' an undefined amorphous group : The offence of defamation under Sections 499/500 of the Indian Penal Code is attracted only with respect to a defined group. 'Modi' is an undefined amorphous group having about 13 crore people living in different parts of the country and belonging to different communities. The term ‘Modi’ does not fall in any category of association or collection of persons as stipulated under Section 499 of IPC

2. Remark was not against the complainant : Gandhi made the comment "Why all thieves have the same surname?" after referring to Lalit Modi and Nirav Modi. The comment was specifically referring to certain specified individuals and the complainant, Purnesh Ishwarbhai Modi, cannot be held to be defamed by the said remark which was addressed in a specific context in reference to specific individuals.

3. Complainant has not shown how he was affected : The Complainant simply has a ‘Modi’ surname from Gujarat who has neither shown nor been held to be prejudiced or damaged in any specific or personal sense. Thirdly, the Complainant admitted that he comes from Modh Vanika Samaj. This term is not interchangeable with Modi and the Modi surname is present in various castes.

4. No intention to defame : The comment was a part of a political speech made during the 2019 Lok Sabha campaign and there was no intention to defame the complainant. So the mens rea for the offence is lacking.

5. High Court erred in holding that the offence required harshest punishment : A political speech in the course of democratic political activity, critical of economic offenders, and also of Prime Minister Narendra Modi, has been held to be an act of moral turpitude inviting the harshest punishment. Such a finding is gravely detrimental to democratic free speech in the midst of a political campaign.This will set a disastrous precedent wiping out any form of political dialogue or debate which is remotely critical in any manner.

6. No moral turpitude involved in the offence : There is no moral turpitude involved in the offence. The term "moral turpitude" ex facie cannot apply to an offense where the Legislature thought it fit to provide for a maximum punishment of only 2 years. The offence is also bailable and non-cognizable and hence cannot be regarded as "heinous".

Three-pronged test determines whether an offence amounts to moral turpitude:

i. Whether the act shocks the moral conscience of society in general.

ii. Whether the motive behind the act is a base one.

iii. Whether on account of the act, the person can be considered to be of a depraved character or a person to be looked down upon by society.

As regards the first test, the only person allegedly aggrieved has been the Complainant. So there is no evidence of the offence shocking the "moral conscience of society in general".

At the the highest, the petitioner's speech was a case where a linkage was sought to be established between economic offenders and people in powerful positions in government, as part of political satire. If political satire were to be held to be a "base motive", then any political speech which is colourfully critical of the government, or any other political party or involves a turn of phrase in the course of a vigorous political speech, would become an act of moral turpitude. This would completely corrode the foundations of democracy.

Depravity and vileness, which are the essential core of moral turpitude, are associated with rapists, murderers, heinous violence, and such other similar crimes. A satirical statement made in a political context cannot be characterised as a morally depraved act.

7.Irreparable injury caused to the petitioner and his constituency:  As a result of the imposition of the maximum term of punishment of two years against the petitioner, which in itself is a rarity in a criminal defamation case, he got disqualified as a MP representing the Wayanad Constituency, from where he won with a remarkable margin of over 4.3 lakh votes. Absence of stay of conviction will preclude the petitioner, a prominent opposition voice, from contesting future elections. 

8. High Court ignored the basic criteria for staying conviction :  As per well-settled precedents, two basic principles guide the suspension of conviction - (1) No serious offence involved which is punishable with death, life imprisonment, or imprisonment of a period not less than 10 years; (2) The offence involved should not involve moral turpitude. Both these conditions are satisfied in the case of the petitioner. Yet the High Court chose not to suspend the conviction by misconstruing the offence as involving moral turpitude.

9. High Court acted on extraneous considerations : The High Court observed that Gandhi "suggested the name of the Hon’ble Prime Minister to add sensation, apparently, and with the intention to affect the result of the candidate of the concerned constituency belonging to the political party of the Hon’ble Prime Minister…”. Such considerations are wholly irrelevant in deciding the plea to suspend conviction, especially when the  conviction itself was not on the ground that any imputation was made against Prime Minister Narendra Modi. 

Another extraneous and new factor has been added by the High Court to determine whether an offence is serious or not, and that is ‘purity in politics". The High Court has not only treated and held the pending criminal cases (where the Petitioner has never been convicted) as “criminal antecedents”, but has completely ignored the vital fact that even in such cases where the Petitioner is merely an accused, each of those cases are solely filed by ruling party BJP workers and office bearers.

10. High Court's order affects free speech, democratic process : If the impugned judgement is not stayed, it would lead to "throttling of free speech, free expression, free thought, and free statement". It would contribute to the "systematic, repetitive emasculation of democratic institutions and the consequent strangulation of democracy which would be gravely detrimental to the political climate and future of India". If political satire were to be held to be a base motive, then any political speech which is colourfully critical of the government, would become an act of moral turpitude. "This would completely corrode the foundations of democracy," 

Rahul Gandhi's Special Leave Petition in the Supreme Court has been drawn by Advocates Tarannum Cheema and S Prasanna and settled by Senior Advocates Prashanto Kumar Sen, Harin P Raval, R S Cheema and re-settled by Senior Advocate Dr Abhishek Manu Singhvi.

On March 23, 2023, the Court of Chief Judicial Magistrate, Surat convicted and sentenced Gandhi to 2 years imprisonment, following which he was disqualified as a member of Lok Sabha. However, his sentence was suspended, and he was also granted bail on the same day to enable him to move an appeal against his conviction within 30 days.