– Ms. Manasi Bhushan (Advocate) and Ms. Hanna Shirin (Intern at Chamber of Manasi Bhushan & Student at Campus Law Centre, Delhi)

Congress leader, Mr. Rahul Gandhi was disqualified from Lok Sabha membership and was convicted with two-year imprisonment for making defamatory statements during 2019 election campaign. This article elaborates relevant statutes and the judicial background regarding criminal defamation in India.

Timeline of Events

13.04.2019 – Mr. Rahul Gandhi (Former President of the Indian National Congress (INC)) alleged during an election rally at Kolar, Karnataka that Mr. Narendra Modi (Prime Minister) extended undue favours to his industrialist friends who looted the country. He said “Nirav Modi, Lalit Modi, Narendra Modi… how come they all have Modi as common surname? How come all the thieves have Modi as the common surname?”

16.04.2019 – Mr. Purnesh Modi (Bhartiya Janta Party (BJP) MLA, former President of BJP, Surat, Gujarat), filed a criminal defamation case U/S.499, 500 and 504 of Indian Penal Code (IPC) against him. In his complaint, he alleged that Mr. Gandhi defamed the entire Modi community with his remark, “How come all the thieves have Modi as the surname?”

10.10.2019 – Mr. Gandhi pleads not guilty to the charges before the Chief Judicial Magistrate, Surat.

23.03.2023 – Court convicts Mr. Gandhi with two years imprisonment for committing criminal defamation in case titled as “Purnesh Ishvarbhai Modi vs. Rahul Gandhi [MANU/OT/0014/2023]”. Court suspends the sentence for 30 days, so that Mr. Gandhi can appeal in a higher court. He was also granted bail on ₹15,000 bond.

The court remarked while holding him guilty “Rahul Gandhi has been previously advised by the Supreme Court to be careful about his statements but there is no change in his conduct. Rahul Gandhi is a sitting MP and as an MP, when you’re addressing the public, it is a serious issue. Statements of MPs have a very wide impact and this makes his crime more serious.”

Consequently, Mr. Rahul Gandhi was disqualified from the Lok Sabha w.e.f. March 23, 2023 as he was convicted by the Chief Judicial Magistrate, Surat Court for criminal defamation for a period of two years. He filed an appeal before the Session’s Court against his conviction.

Criminal Defamation under Indian Law

What is defamation? In layman’s language it may be defined as any action of damaging someone’s good reputation. In India, defamation as a civil wrong is punishable with damages under torts whereas, as a criminal offence it is punishable under IPC with criminal imprisonment and fine.

Section 499 of IPC states

“Whoever, by words either spoken or intended to be read, or by signs or by visible representations makes or publishes any imputation concerning any other person intending to harm, or knowing or having reasons to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
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Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
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Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful.”

Therefore, the following acts must be done in order to constitute criminal defamation:

• Imputation must be made to a third party either in writing or verbally (through words, signs, visible representations or gestures).
• Such imputation should be against a particular person/s whose identity can be established or identifiable.
• There should be an intention of harming or knowledge / reason to believe that such imputation may cause harm to the reputation of defamed person/s.

Section 500 of the IPC provides for punishment with simple imprisonment up to two years, or with fine, or with both.

Disqualification of a Member of Parliament (MP) under Indian law

In India, disqualification of an MP can be under three circumstances:

• Under Art.102(1)(e) of Constitution of India, if an MP is so disqualified by or under any law made by Parliament.
• Under Tenth Schedule of Constitution of India on grounds of defection.
• Under Section 8(3) of the Representation of the People Act, 1951 (RP Act) upon being convicted of a criminal offence. This provision disqualifies an MP until further six years from the date of his release after conviction.

Enforcement of disqualification

A disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted. A stay seeking execution of the sentence under Section 389 of Code of Criminal Procedure (Cr.P.C.) can be granted by the appellate court during the pendency of an appeal. The appellate court can also grant bail while hearing the appeal and on staying the execution of the impugned sentence.

Interesting observations in Mr. Rahul Gandhi’s case

1. Jurisdiction: Considering the jurisdiction in the present matter, it is necessary to take note of S.179 of Cr.P.C. which provides that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. In the present matter, allegedly defamatory statements were made in Karnataka whereas the criminal complaint and case were filed and prosecuted in Gujarat.
2. Term of Punishment: The sentence granted of 2 years is prominent here as U/S.8(3) of RP Act, a disqualification will take effect only if a punishment of two years or more is granted to an MP. Further, U/S.8(4) of RP Act, such disqualification is to take effect after three months have elapsed from the date of conviction, during which an MP could file an appeal against the sentence. The Supreme Court in case titled as “Lily Thomas v Union of India [AIR 2013 SC 2662]” declared S.8(4) of RP Act as unconstitutional. The Court held that an MP would be immediately disqualified on attracting a sentence of two years or more, unless the conviction is stayed by a higher court. This means that the provision having a three-month window for filing an appeal and continuing as an MP in the said time duration was struck down as unconstitutional. Interestingly, if the sentence granted on Mr. Rahul Gandhi had been even for a one day lesser, then the disqualification would not have been valid U/S.8(3) of RP Act.
3. Whether defamation constituted: On examining the issue of an identifiable group of persons as mentioned U/S.499 of IPC, can anyone with the last name of ‘Modi’ claim to have been defamed by Mr. Gandhi’s words? The Supreme Court in case titled as “ Narasimhan & Ors. etc. v. T.V. Chokappa [AIR 1972 SC 2609]” highlighted the principle that defamatory remarks must relate to a specific person or group. The Court held that such a collection of individuals must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished from the rest of the community, were defamed. Therefore, in a case where explanation 2 is resorted to, the identity of the company or the association or collection of persons must be established so as to be relatable to the defamatory words or imputations.
4. Suspension of sentence: The Congress-led UPA government under Prime Minister, Mr. Manmohan Singh had tried to overturn the Supreme Court’s order by bringing in the Representation of the People (Second Amendment and Validation) Bill, 2013. This bill proposed that people’s representatives would not be disqualified immediately after conviction. On 24.09.2013, the Centre attempted to bring the bill into effect as an Ordinance but was opposed by then Congress Vice President, Mr. Rahul Gandhi. At a press conference in Delhi, he said that the Ordinance was a complete nonsense that should be torn up and thrown away. Ironically, this ordinance, if passed, could have saved him disqualification as he is currently facing. (Source: https://www.hindustantimes.com/india-news/Shri Rahul-gandhi-tore-ordinance-in-2013-for-3-month-protection-from-disqualification-101679557593189.html)
5. Constitutional validity of criminal defamation: The Supreme Court in case titled as “Subramanian Swamy v. Union of India [AIR 2016 SC 2728]”, dealt with constitutionality of criminal defamation as it allegedly infringed Right to Freedom of Expression under Art.19(1)(a) of Constitution of India. The court dismissed the said petition stating that the restrictions were reasonable and necessary to uphold the dignity of others under Art.21 of Indian Constitution and that the Right to Freedom of Expression does not include the right to offend.

Since this matter is sub-judice before the Session’s Court at Gujarat, all are eyeing to the judgment by the Sessions Court and its consequences on the membership of Mr. Rahul Gandhi as an MP.