The rigors of law and the intricacies of politics have come together to hoodwink Congress leader Rahul Gandhi. In 2019 he made an election time mockery – ‘How is Modi in the name of all these thieves?’ — has been declared defamatory by a court in Surat. Mr. Gandhi has been sentenced to two years in prisonmaximum punishment for criminal defamation, and disqualified from his membership in the Lok Sabha, Both conviction and sentence raise legal questions. Does this comment amount to maligning people in particular or people with the surname ‘Modi’ as a group? Case law indicates that the expression ‘collection of persons’ used in section 499 of IPC, with reference to those who can be defamed, must be an identifiable class or group and the particular members who initiate criminal proceedings for defamation must demonstrate the personal harm or injury caused by the alleged defamatory statement. It is difficult to sustain the argument that all people with the surname, and not just the three persons referred to, including Prime Minister Narendra Modi, could be aggrieved persons. Further, it is not clear whether the complainant, BJP MLA Purnesh Modi, had shown that he was aggrieved by the alleged abuse either personally or as a member of the ‘Modi’ group.
The maximum sentence is also troubling. Statutes set maximum prison terms so that trial courts use their discretion to award punishment commensurate with the seriousness of the offence. It is questionable whether attacking an indefinite group of people with a general remark would amount to defamation, and even if it did, whether it was serious enough to warrant the maximum punishment. The correctness of the decision will be decided on appeal, but Mr Gandhi will have a lasting effect of political cost in the form of disqualification from the House and from the electoral contest, unless he obtains a stay on the conviction and not just a suspension sentence. In a country often plagued by the criminalization of politics, corruption and hate speech, it is ironic that criminal defamation should dominate the political career of a prominent leader. A modern democracy should not treat defamation as a criminal offense at all. It is a legacy of an era in which the power to question was considered a grave offence. In contemporary times, criminal defamation serves primarily as a tool to suppress criticism of public servants and corporate misdeeds. In 2016, the Supreme Court upheld criminal defamation without paying enough attention to the chilling effect it has on free speech, and now must add political protest and dissent. Opposition parties expressing dismay over the verdict against Mr. Gandhi should make criminal defamation a part of their agenda.
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