SC says Gandhi’s conviction affects his right to continue in public life and his electorate’s right to represent their constituency

By Staff Writer 

Last Friday (4), the Supreme Court of India (SC) suspended Congress Party (CP) leader and former Member of Parliament, Rahul Gandhi’s defamation conviction, allowing him to return to parliament and contest national elections next year. Gandhi was convicted in March this year for allegedly having sarcastically quarried why “all thieves have Modi as their common surname.”

Gandhi has been embroiled in a controversy over this remark made at a political rally in Karnataka’s Kolar in 2019, where he questioned why all thieves share the Modi surname. Bharatiya Janata Party (BJP) and former Gujarat minister Purnesh Modi filed a complaint against Gandhi under Sections 499 and 500 of the Indian Penal Code for defamation. Gandhi challenged the Gujarat High Court’s refusal to stay his conviction in a criminal defamation case over the remark, which resulted in his disqualification from the Lok Sabha. SC issued a notice on Gandhi’s plea. 

According to Indian media, Singhvi, Gandhi’s lawyer, argued that the maximum sentence for the offense was excessive and would silence Gandhi for eight years, disqualifying him from elections. Singhvi also stated that Gandhi had no malicious intent to defame the complainant. However, Purnesh Modi opposed a stay of Gandhi’s conviction, asserting that Gandhi had defamed every person with the Modi surname, particularly the Modjh Vanik caste in Gujarat. Modi argued that Gandhi’s lack of contrition and contempt for the law should disentitle him from any relief. 

SC Order

The order in the case of Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. was delivered on 4th August 2023. The petition was called for hearing before Justice B.R. Gavai and Justice Pamidighantam Sri Narasimha. The petitioner sought a stay on the order of conviction imposed by the Trial Judge, pending the hearing of the appeal.

The petitioner, Gandhi, argued that the Trial Judge had not provided any reasons for imposing the maximum sentence, which would result in disqualification under Section 8(3) of the Representation of the People Act, 1951. Therefore, the order of conviction should be stayed during the pendency of the appeal. The Court agreed with the petitioner’s argument and decided that “ [w]e, therefore, stay the order of conviction during the pendency of the present appeal.”

The Court noted that the Appellate Court and the High Court had rejected the application for stay of conviction without addressing the issue of imposing the maximum sentence. The Court acknowledged that the alleged utterances by the appellant were not in good taste and that a person in public life is expected to exercise restraint while making public speeches. However, the Court observed that the Trial Judge should have provided reasons for imposing the maximum sentence of two years.

The Court emphasized that the pendency of the appeal does not automatically stay the conviction. However, considering the lack of reasons provided by the Trial Judge and the potential consequences of disqualification, the Court decided to stay the order of conviction.

The Court also highlighted that the petitioner should have been more careful while making the public speech.

The Court further discussed the provisions of Section 8(3) of the Representation of the People Act, 1950, which come into play when the sentence is the maximum of two years. The Court noted that if the sentence had been even a day lesser, the provisions of sub-section (3) of Section 8 would not have been attracted. 

Section 8(3) in The Representation of the People Act, 1951 is as follows:

8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] 9[(4)] Notwithstanding anything 10[in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

The Court concluded that the ramifications of Section 8(3) of the Act are wide-ranging, as “they not only affect the appellant’s right to continue in public life but also the right of the electorate who elected him to represent their constituency”. 

Arguments

Rahul Gandhi’s counsel Advocate Abhishek Manu Singhvi, argued that the Representation of Peoples Act does not mention the concept of “moral turpitude” and only states that a sentence of two years or more will result in disqualification. He questioned the complainant’s interest in ensuring Gandhi’s disqualification, stating that his concern should only be the conviction. He also raised doubts about the evidence in the case, highlighting that the complainant had not heard the speech first hand and relied on a WhatsApp message and a newspaper article. He pointed out that the trial judge has failed to provide reasons for imposing the maximum punishment, which is very rare.

The counsel for the complainant,  Advocate Mahesh Jethmalani, argued that Gandhi’s conviction should not be stayed.  He argued  that in the 2013 Lily Thomas case, the Supreme Court struck down a provision that allowed the disqualification to be kept in abeyance during the appeal. The counsel argued that seeking a stay on the conviction was an attempt to reintroduce a provision that was already struck down by the Supreme Court. Gandhi should not be exempted from the consequences of his actions and should apologize for his remarks, counsel stated.

BJP witch-hunt of political opponents 

Gandhi was expelled from the Lok Sabha, the lower house of the Indian Parliament, following his conviction, just within 24 hours of the court verdict and while an appeal was still in process. His expulsion was a political move by the BJP to silence opposition and consolidate its power.

BJP decided to mount a legal vendetta against Gandhi because Gandhi had raised questions about the BJP government’s and especially Modi’s close ties to the Indian oligarch Gautam Adani and his Adani Group.

The BJP, the ruling party, has a history of using government agencies and the courts to attack its political opponents. BJP ordered tax officials to raid BBC offices in retaliation for a documentary that highlighted Prime Minister Narendra Modi’s role in the 2002 Gujarat anti-Muslim pogrom. However, the opposition parties, including the Congress, have no  fundamental differences with the BJP and for their own history of conniving with the Hindu right and supporting pro-market reforms.

The BJP, with its far-right Hindu supremacist activists, is using its power to intensify the exploitation of the working class and pursue its global ambitions. India is crisis-ridden, with abject poverty, unemployment, and agrarian distress, which have led to mass strikes and protests. The BJP is sitting atop a social powder-keg.

The opposition parties have denounced Gandhi’s expulsion and warned that the government is using various agencies to target its political opponents.

The Congress Party is not an alternative to the BJP. CP and other right-wing parties are preventing the working class from mobilizing independently from them,  in the name of fighting the BJP. None of these parties fight communal reaction and authoritarianism, but would stand upon the same against the working people, when in power.