The recent conviction of Mr Rahul Gandhi for the Libel that he committed in Kolar, Karnataka way back on April 13 2019 was for a remark ”why do 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. ” Admittedly, it was a verbal statement made in a political meeting. It became Libel when the video was circulated around India including Surat. Three people are most aggrieved by the statement, Nirav Modi and Lalit Modi (for obvious reasons) cannot fight defamation complaints in India. Mr Narendra Modi maintained his enigmatic silence. But, another BJP MLA Poornesh Modi found the matter to be slanderous, and libellous and lodged a Criminal Complaint as it tarnished the reputation of the Modi community. After a full-fledged trial, Chief Judicial Magistrate, Surat convicted Mr Gandhi of Criminal Defamation and sentenced him to undergo a sentence of 2 years imprisonment(arguably the maximum sentence handed out in a Private Complaint Defamation Case, that too to a First Offender) and further imposed on him a fine of Rs 15,000/-. The Trial Judge duly suspended the Sentence but did not stay the conviction. Yesterday, Lok Sabha Secretariat notified the disqualification of Rahul Gandhi as a Member of Parliament from the Wayanad constituency.
Actually,
under the earlier law of Criminal Defamation, a generalized statement against a
class of people, (however untrue it may be) cannot constitute defamation. For example,
all politicians are scoundrels, all lawyers are manipulative and unreliable, and
all healthcare workers are avaricious. Similarly, the attribution of a false
narrative to a caste or community should normally fall in that category. However,
I am not willing to go into the correctness of the conviction. In any case, the
matter is/will be Subjudice. Mr Rahul Gandhi will pursue his two Statutory Appeals
aided by the best lawyers in the country, therefore I don’t intend to consider
the correctness of the Judgment. In any case, I do not have the proceedings of
the Trial Court Judgement! (not worth the effort!). Assuming that the conviction
is justified in view of the statement that more and more Modis are thieves, as there
would surely be honest Modis in the community, the Trial Judge may be right in
holding him guilty. Whether the Trial Judge exercised the next part of his duty
of imposing a sentence in a judicial way is a relevant question. The Trial Judge had stated on record that the
act in question occurred in a Political Meeting where running down your
political opponents is the norm and not the exception. Two of the Modis he
mentioned are fugitives from the law. The Third Modi is the Prime Minister who
with all his imperfections has kept himself above serious corruption
allegations. The case of Adani at worst can only be nepotism and not corruption.
But that is a different story and at worst can only be a mitigating circumstance
on the question of imposition of sentence!!
Furthermore,
Mr Rahul Gandhi has been a Member of Parliament for 20 years. In the neighbouring
state of Maharashtra, when Anna Hazare was prosecuted for criminal defamation and
convicted, he was imposed a sentence of 3 months. In fact, subsequently, the
sentence was remitted and Mr Anna Hazare was exempted from serving the sentence.
Hence, the imposition of a maximum sentence of 2 years on a first offender is
rather glaring. In my opinion, will come under the category of a cruel and unusual
sentence. This Judgement compels us to consider the Policy of Judicial Discretion
in matters relating to imposition of sentence, particularly when High Profile
Trials result in convictions. Earlier, when Mr KPS Gill a former Punjab DGP was
convicted of assault/outraging the modesty of a woman, even though the conviction
was upheld by the apex court, he did not have to serve a single day of sentence.
In the case of Navjyoth Singh Sidhu, even though the earlier Bench of the SC
while upholding the conviction in a case of grievous hurt/causing death by a
criminally negligent act modified his sentence to the period he had undergone
yet. He could not escape serving the sentence of 1-year imprisonment that was reimposed
later by the Supreme Court of India.
The subject
of sentencing discretion in Criminal Law Administration is one of the most
neglected areas in Criminal Justice Administration. Here, in the case of Rahul Gandhi,
one should not lose sight of the fact that only an imposition sentence of more
than 2 years will attract disqualification under the Representatives of Peoples
Act. Hence, the Trial Judge disqualifies a Member of Parliament with 2 decades
of Political Experience for an act of Political Slander in a public meeting. This,
to me, really looks unusual and is indicative of the fact that sentencing
discretion in the hands of the Trial Judiciary needs careful scrutiny.
I have to
necessarily compare a judgement of a conviction and sentence from a Trial Court
from the state of Tamil Nadu in respect of yet another sitting member of
Parliament( Rajya Sabha) Mr V Gopalswamy (Vaiko). A Special Court after trying
Mr Vaiko for the Offence of sedition convicted him only for a period of 1 year
and imposed on him a fine of Rs 1 lakh. Mr Vaiko duly paid the fine, filed an
appeal, and had the sentence of 1 year suspended. We can be reasonably sure
that Madras High Court will not hear the Appeal at least for the remainder of
the term of the Member of Parliament. Actually, a Member of Parliament
committing sedition should attract the maximum punishment. It is another matter
when people say that sedition itself should not be an offence in as much as the
Universal Declaration of Human Rights promises the right to self-determination.
But, once it is there in the statute and the Statute prescribes the maximum sentence
of life, sentences of 1 year become a matter for debate. Actually, I have written
a blog
on this topic. In an earlier Criminal Defamation case that was initiated by
highly venerated Kalaignar Karunanidhi against a Tamil Daily Editor for a story
he authored, the sentence given was less than 6 months. It was another matter
that the editor could not prove justification by truth even though his story
proved to be true later. Hence, it is clear that different judges from
different parts of India have different yardsticks on the question of imposition
of sentence after having found the person guilty. How else can you justify a sentence
of 1-year imprisonment for sedition and 2 years imprisonment for political
defamation?
It brings
us to the next question, whether different parts of India have different yardsticks
in the Administration of Criminal Justice. Surely, in a federal polity, there
will be differences in the levels of governance and the yardsticks employed for
governance. For example, had these prosecutions been initiated in the state of
Karnataka where the original act of defamation was committed, I am not too sure
whether Karnataka courts would have convicted Mr Rahul Gandhi even though
Karnataka is ruled by a BJP government. Assuming that the learned Magistrate in
Karnataka found him guilty, he/she wouldn’t have given him the sentence of 2
years which is excessive for a 1st-time offender. I must confess
that I have voted for BJP in the past though not always. I am not a political
admirer of Mr Rahul Gandhi, though I admire Manmohan Singh, Shashi Tharoor, and
Sachin Pilot in the Congress party. In fact, I hold Mrs Sonia Gandhi in very
high esteem for voluntarily relinquishing her claim to Prime Ministership, Yet I
am not a supporter of Mr Rahul Gandhi. Nevertheless, I believe that Mr Rahul
Gandi has been denied the right to a fair sentence proportionate to the crime
that he allegedly committed. Assuming that the conviction is justified (about
which I have expressed no opinion) the sentence imposed is excessively cruel
and designed to bring about the political disqualification of Mr Rahul Gandhi. Hence,
I believe it is the Trial Judiciary that denied Mr Rahul Gandhi his fundamental
right to free political speech. I am sure and confident that the Appellate Courts
in the hierarchy (during one stage or the other) may hold Rahul Gandhi
innocent. Yet, it would have ensured the accomplishment of the BJP objective of
Congress-mukth-Bharat or at least Nehru/Gandhi mukth Congress. The purpose of
this blog is to highlight the perils of unbridled discretionary powers that the
judges under our system of law exercise in matters relating to the imposition
of sentences on convicts.
Very well written article.
ReplyDeleteS A Rajan
DeleteYou have analysed the episode very well. We have been having judiciary being liberal in imposing sentence. However this can not be quoted in this case . A parliamentarian of 20 years standing should set example to the citizens of his country and cannot be slip-shod in making shoddy statements. The quantum of sentence considering his position is correct.
ReplyDeleteWhat is stated is very much correct . We have to go back to 2013 when such law was made and then PM tried circumvent by an ordinance which was torn off by Rahul. A good opposition should be capable of countering with proper firm alternative solutions which is done KN other democratic countries like Europe etc. rather than making personal attacks , demeaning acts and personal vilifications which expose the opposition as ding dangling without any proper line of thinking .
ReplyDeleteYour article had some factual error. Sonia Gandhi went President Kalam to claim the PM post for herself. She was not saint nor President Office had some Bodhi Tree for a sudden realization to relinquish the PM Post.
ReplyDeleteFree Political speech does not mean to demean a community at large. Hence, here again, there is a confusion between what is meant by Free Political speech.
One question arises over your first-time offender remark.
ReplyDeleteMr. Rahul Gandhi has publicly stated that RSS had assassinated Mohandas Karamchand Gandhi and continued to lie about this in public. The truth, however is different. When Rahul Gandhi was taken to the court for this offense, I understand that his lawyers had to apologize when SC upheld the arguments of RSS council.
2) In 2019, the famous Rafale judgement which found no wrong doings in the transaction, Rahul Gandhi mistated the judgement and thereto, when he was hauled by the courts, he had submitted a written apology.
This straight away negates your argument of Mr.Rahul Gandhi being a first time offender.
Once is a mistake
Twice is a pattern
Thrice a Habit..
Habitual offender??? 😃
Rahul the half Indian has no clue about India and the caste system. In Tamil Nadu a Brahmin could be abused with impunity. But in UP there will be consequences. In Gujarat Modi is OBC with a sense of pride and won’t take an insult lying down . Rahul crossed the line he needs to face the consequences
ReplyDeleteVery good analysis.
ReplyDeleteVery Franckly & right ✅️
ReplyDeleteThree questions : 1. Was Rahul Gandhi right to broad brush a community for a petty brownie point? 2. Did he fully avail the entitlements of a defence in a court? 3. Did he or not think that he is entitled
ReplyDeleteNot to receive a sentence because of who he is?