Breaking| Utterances Not In Good Taste, Exercise Caution: Apex Court While Suspending Conviction Of Rahul Gandhi In Defamation Case

The Supreme Court today in the Special Leave Petition filed by the Congress leader Rahul Gandhi challenging the Gujarat High Court's decision refusing to stay his conviction in the criminal defamation case over his "Modi surname" remark stayed the conviction of Gandhi.

The Bench of Justice B.R. Gavai, Justice PS Narasimha and Justice Sanjay Kumar said in its order: Heard Dr. Singhvi and Mr. Jethmalani on the question of interim protection. Though Dr. Singhvi and Jethmalani have argued at length, the arguments are on the merits of the matter. The appeal by the present appellant is pending before the appellate court. We, therefore, defer from observing on the merits of the matter since it will adversely affect the rights of the parties before the appellate court. In so far as suspension of sentence is concerned, we have considered certain practices. The sentence for an offence punishable under Section 499, the learned trial judge has awarded the maximum sentence of 2 years. Except for the admonition of the petitioner by this court in a contempt case, no other reasons have been given while imposing the maximum sentence. It is only on account of the maximum sentence of 2 years, the provisions of the Representation of Peoples Act have come into play. Had the sentence been even a day lesser, the provisions would not have been attracted, particularly when the offence is not cognisable, is compoundable and bailable. The trial judge was expected to give some reason as to why the maximum sentence was imposed. Though the learned appellate court and the High Court have spent voluminous pages on the suspension of sentence, this aspect has not been considered in the order. No doubt that the utterances by Petitioner are not in good taste. A person in public life is expected to exercise a degree of caution while making public speeches. As has been observed by this court, the petitioner ought to have been more careful while making public speeches. Had the judgment to the Apex Court come prior to the speech, the petitioner would have been more careful and would have exercised a degree of restraint while making such remarks which are alleged to be defamatory. The conviction affects the rights of the electorate to represent their constituency. We are of the considered view that taking into consideration, the aforesaid aspects, and particularly that no reason has been given by the learned judge for imposing the maximum sentence, which has the result of incurring disqualification, the order of the conviction needs to be stayed pending the hearing of the appeal.

Senior Advocate Dr. A.M. Singhvi appearing for Rahul Gandhi started his submissions by saying that it is for the first time that a group of 30 crore people have been held as an identifiable class. Justice Gavai then said that an exceptional case will have to be made out for a stay on conviction.

Dr. Singhi submitted that the original surname of the complainant Purnesh Modi was not Modi. He submitted that no one out of the persons Rahul Gandhi named in his speech have approached the Court. Singhvi then read from the order of conviction. Singhvi then submitted that the finding that the offence is of moral turpitude is "extraordinary".

"A non-cognisable, bailable, compoundable, not against society, not kidnapping, rape or murder, 2 years maximum, and for this a person must be silenced for 8 years. In Democracy there is dissent. I don't think this man in any way intended to make it that personal", he submitted.

"The learned trial judge also talks about your criminal antecedents", Justice Gavai said. Singhvi then submitted that "Hardened criminal? No. Conviction in any case? No. There has to be some mutual respect in politics. It is alright that you don't agree with me. I am not a criminal".

Singhvi then submitted the list of 13 cases where there is no conviction, filed by persons associated with a political party. Singhvi submitted that the offence not alleged against Gandhi under Section 171 (g) has been found against him. Singhvi submitted that the order was reserved by the High Court for a long period and the Court had sufficient time.

"The less said the better about the judgement of the High Court, about judgments coming from the Gujarat High Court", Justice Gavai then remarked.

Singhvi said during his arguments that the election to the seat in Kerala has not been notified probably because they know that chances of victory are less. "Don't make it political", Justice Gavai said smiling, adding that Singhvi and Mahesh Jethmalani may do it in Rajya Sabha.

Senior Advocate Mahesh Jethmalani appearing for the original complainant submitted that there is a plethora of evidence in the case and that the Election Commission has a recording of the speech and the same has been proven. Jethmalani then mentioned how witnesses have deposed about the authenticity of the video of the speech. "So contents of the speech are established", Jethmalani submitted. He also said that though the remarks are widely remarked, it has never been denied.

On identifiable class, Jethmanali read the remarks of Gandhi and submitted, "His intention was to defame every person with the surname Modi just because their surname happens to match that of the Prime Minister". He said that in the 313 CrPC statement, Rahul Gandhi said that he does not remember his speech. "How many of the politicians remember what they say in speeches", Justice Gavai asked. Jethmalani submitted that in this case, Gandhi was facing a trial for what he said and that it is not a case where a politician was asked to recollect what he said in a regular speech.

Jethmalani submitted that an application for a stay of conviction can be granted only if there is a very obvious point that negates conviction. You can't appreciate the evidence etc., he submitted. "It is well settled", Justice Gavai said.

"Is it a relevant factor that the constituency goes unrepresented?" asked Justice Gavai adding that the trial judge has not given any reason for granting maximum sentence. "It is not only affecting the right of an individual but the rights of an entire constituency", Justice Gavai said. He referred to what the trial judge said about the accused being an elected representative not being a relevant consideration and about the behaviour that is expected out of elected representatives. He remarked smiling that he is seeing such judgments more often from Gujarat, "the Solicitor General's state". Tushar Mehta had just then appeared on the virtual hearing screen.

"Since it is my parent High Court I must point out that when reasons are not given, it is criticized", Tushar Mehta said, submitting that such remarks will be demoralizing for High Court judges. Justice Gavai then said that he is slow to make such remarks and that he has not said anything off the cuff.

Jethmalani then referred to the earlier case against Gandhi for his remark about the Rafale case that the Supreme Court said "chowkidar chor hai" which resulted in a contempt of court case. Justice Gavai then remarked that had the judgment in that case come earlier, Rahul Gandhi would have been more careful.

Jethmalani also said that re-election will be held in the constituency and that the constituency will not elect a person who has made such statements and has broken the law.

Singhvi in his rejoinder submitted that the Apex Court has held earlier that constituency remaining unrepresented is a relevant consideration at this stage.

The Court then took a small break and reassembled to pronounce its order.

On the previous date of the hearing, Justice B.R. Gavai of the Supreme Court had offered to recuse from the matter after highlighting his family association and close connection with the Congress Party. Though the Court had refused to suspend Rahul Gandhi's conviction on that day, it had issued notice on the SLP.

The Sessions Court of Surat had on April 20, 2023, dismissed the plea filed by Congress party leader Rahul Gandhi seeking a stay on his conviction by a Magistrate in a criminal defamation case. Similarly, the Gujarat High Court dismissed the appeal and noted that stay of conviction is not a rule but an exception to be resorted to in rare cases. The Court also stated that as many as 10 criminal cases are pending against Rahul Gandhi and that the need of the hour is to have purity of politics.

A metropolitan magistrate's court in Surat on March 23 sentenced the former Congress president to two years in jail after convicting him under Indian Penal Code (IPC) sections 499 and 500 (criminal defamation) in a 2019 case filed by Bharatiya Janata Party's (BJP) Gujarat MLA Purnesh Modi. Following the verdict, Gandhi, elected to the Lok Sabha from Wayanad in Kerala in 2019, was disqualified as an MP under the provisions of the Representation of the People Act.

Cause Title: Rahul Gandhi vs. Purnesh Ishwarbhai Modi & Anr. [D.No.27941/23]