Rahul Gandhi conviction: Congress leader may not be ‘freed’ till next election

Surat: Gujarat's Surat court convicted Congress leader Rahul Gandhi on March 23. The court also sentenced him to two years in jail over remarks about Prime Minister Narendra Modi's surname. He was granted bail for 30 days, allowing him to appeal the decision. A complaint was lodged by BJP MLA and former Gujarat minister Purnesh Modi alleging Rahul's defamed the entire Modi community.

In 2019 defamation case of Rahul Gandhi pertains to remarks at a rally in Karnataka's Kolar on April 13, 2019, just ahead of the Lok Sabha elections. “Nirav Modi, Lalit Modi, Narendra Modi...how come they all the thieves have Modi as the common surname?”

In daily newspaper language, one should know that merely saying ‘alleged’ does not mean guilty. In the parlance of legal language, ‘facts’ do not mean truthful points. Some statements may be proved. Any such ‘facts’ need to be concluded after trial. Besides, one who repeats such an alleged comment could make it another crime and shall be punished.

What exactly is the ‘charge’? Rahul Gandhi said how come all the thieves have Modi as their common surname. Can he explain that it was a ‘criticism’?

Case under RPA

As for the law, two punishments are possible: one for jail term for defamation and a second – for disqualification in addition, under Section 8(3) of the Representation of the People Act, 1951. It says:

(3) A person convicted of any offense and sentenced to imprisonment for not less than two years [other than any offense referred to in subsection (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.]

(4)] Notwithstanding anything 10[in sub-section (1), subsection (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 right to free speech and legal issues

Is civil liability enough for defamation? Why should there also be one criminal liability? And, is Rahul Gandhi guilty?

Article 19(2) of the Constitution has listed nine grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of them. The provision in Constitution is silent as to which type of defamation, civil or criminal.

Macaulay’s IPC or ‘Indian’ Code

For more than a century, the ‘criminal sentence’ remained part of the Indian Penal Code (IPC). This code was criticized as yet to become an ‘Indian’ penal code.

In an article titled Macaulay’s Indian Penal Code: Historical Context and Originating Principles, Wright, said: “Criminal law codification was never realized in England, despite its central place in 19th-century law reform debates there. Codes were developed in other British jurisdictions and the first of these, and the one most directly influenced by the ideas of Jeremy Bentham, was Thomas Babington Macaulay’s Indian Penal Code (IPC). Bentham coined the term codification, a sweeping legislative reform based on his critique of the common law and his ambitious ‘science of legislation.’ All existing laws were to be replaced by comprehensive provisions set out in a rational, consistent, and accessible form amenable to efficient administration and minimal judicial discretion.”

Wright said that ‘such a code, anchored in the principles of utility, would not only enhance the rule of law but held out the promise of a ‘universal jurisprudence,’ applicable to places as diverse as England and Bengal as Bentham put it, later predicting that he would be the “dead legislative of British India.” But that hope had diminished over some time.

He further stated: “By 1836 law reforms ended prior restraint of the press and the special privileges accorded to European residents in civil cases. Education reforms widened accessibility and modernized curriculum. The IPC, completed in 1837, was Macaulay’s biggest project. This first code of criminal law in the British Empire is arguably his most influential and lasting achievement…..”

It was supposed to end ‘prior restraint of the press and the special privileges accorded to European residents in civil cases. Even today, every Government used prior restraint to silence the voice. Criminal defamation is misused by all Governments, without exception.

Besides Mahatma Gandhi and Jawahar Nehru and lakhs of freedom fighters were punished by using these so-called law reforms by British rulers. before independence. They did much little for the freedom of India’s nation, are using Macaulay’s so-called ‘reform’? Crores of ordinary commoners, journalists, and writers who questioned people in power are being harassed.

Defamation in India

The ‘defamation’ can be just a tort (or called civil wrong). Thomas Babington Macaulay’s Indian Penal Code (IPC) codified criminal defamation, but British Law Commissions did not make laws for torts. Freedom fighters opposed that ‘defamation as a ‘crime’ under this more than 150 years old IPC. As long as it is used by the Governments, both before and after Independence, the ‘crime’ of defamation will breach the freedom of speech. Defamation should be reasonably resorted to imposing damages, but they are very profusely abused by the Governments.

There are various defamation kinds of crimes. The offense of sedition is heavily ‘criminalized’ by section 124A of IPC. The offense of blasphemy is another serious crime under section 295A. Meanwhile, obscene libel is also criminalized by section 294 of the IPC. This kind of offense should be repealed from IPC. There should be a social revolution against freedom of speech. Why India will not remove it like Britain, where it was born?

Libel is against press freedom

The Supreme Court in the Subramanian Swamy case upheld this libel and continues to exist under section 499 of the IPC. Every party or every political group is using this IPC for punishing those who used freedom of speech or expression. Now the time has come for reviewing to uphold the freedom of the press and repeal the criminal defamation cases and let the civil cases without huge hundred crore cases baffle ordinary journalists.

Great political thinkers also should not be tinkered with the freedom of speech.

In an article on “Criminal Defamation and The Supreme Court’s Loss of Reputation”, senior advocate and writer Bhairav Acharya said:

“Of the many errors that litter the Supreme Court’s May 13, 2016 judgment in the Subramanian Swamy case, perhaps the most egregious is the failure to recognize the harm that criminal defamation poses to a healthy civil society in a free democracy. At the crux of this mistake is the Supreme Court’s failure to distinguish between private injury and social harm. Two people may, in their private capacities, litigate a civil suit to recover damages if one feels the other has injured her reputation. This private action of defamation was not in issue before the court.”

Yes, the state has to ‘protect’ the interest of individual people. But the state cannot selectively punish or reward at her own sweet time. Acharya analyzed the judgment in the Subrahmanian case:

“On the other hand, by criminalizing defamation, why should the state protect the reputations of individuals while expending public resources to do so? This goes to the concept of crime. When an action is serious enough to harm society, it is criminalized. Rape strikes at the root of public safety, human dignity, equality, and peace, so it is a crime. A breach of contract only injures the party who was expecting the performance of contractual duties; it does not harm society, so it is not a crime. Similarly, a loss of reputation, which is by itself difficult to quantify, does not harm society and so it should not be a crime”.

Ambedkar wanted to restrict free speech

The most prominent thinker of Constitutional frames like B.R. Ambedkar has commented in the Constituent Assembly that criminal defamation was intended to be a ground to restrict free speech. Acharya said: ‘The answer to the second question lies in measuring the reasonableness of the restriction criminal defamation places on free speech. If the restriction is proportionate to the social harm caused by defamation, then it is reasonable.

But, eminent law writer Rajiv Dhavan said: “Defamation cases [are] a weapon by which the rich and powerful silence their critics and censor a democracy.”The MP Subramanian Swamy is a strong fighter against criminal defamation cases. Jayalalitha and several other political personalities have many won and some lost cases in punishing. He is also responsible for huge jurisprudence from High Courts to Supreme Court. If everybody like Swamy files criminal cases, thousands and lakhs will be filled with many prisons.

The problem is the ‘delay’ or ‘hurried’ trial. Selective ‘speed’ of trial decides the fate of such VIP political leaders. The ‘convicted’ Rahul may not be ‘freed’ even by the next elections or wait for other general cases. Hearings and arguments in the High Courts and Supreme Court take time. There will be several layers of long litigation problems.

How can jurisprudence tackle politically motivated criminal cases, and so-called ‘speed or delay’? In this context, what will happen to freedom of speech and expression? This depends on the so-called guarantee of this Constitutional freedom.