Only Narendra Modi can complain – one among 7 points put forth by Rahul

On Monday, a Surat court while pausing Rahul Gandhi's two years sentence in connection with a defamation case, posted the matter for further hearing on April 13.

Rahul Gandhi was convicted and sentenced to two years following a complaint by a former BJP MLA, Purnesh Modi. He claimed that Rahul Gandhi had defamed the entire Modi community in a campaign speech at Kolar in 2019. He had purportedly said, "Nirav Modi, Lalit Modi, Narendra Modi. How come all thieves have Modi ass a common surname."

Following his conviction, Rahul Gandhi was disqualified as a Lok Sabha MP. He challenged his conviction through a legal team of Senior Advocate R S Cheema and advocates, Tarannum Cheema and Kirit Panwala.

During the course of the hearing, Rahul Gandhi's team put forth seven different arguments. Let us examine them.

Only Narendra Modi could have filed appeal:

The foremost argument that Rahul's legal team put out was that only Narendra Modi could have filed a complaint. They contended that the complainant Purnesh Modi was not an aggrieved person for the purpose of Section 499 of the Indian Penal Code (IPC) which criminalises defamation. Hence he had no right to file the complaint.

"For the alleged imputations against Shri Narendra Modi individually, only Shri Narendra Modi can be considered as the person aggrieved of the offence of defamation and only Shri Narendra Modi can file a complaint for the same and Shri Purnesh Modi the respondent/complainant has no right to file the complaint on his behalf," Rahul Gandhi contended.

Merely because complainant was shocked...

Gandhi also said tight the trial court convicted him on the basis of two reasons. One was that the complainant was shocked at his statements and that his reputation was hurt. It is contended that these reasons do not make Purnesh Modi an aggrieved person, Rahul Gandhi's legal team said.

"A person having extremely sentimental nature would be shocked even if imputations is hurled not upon him, but on others, such a person can't be termed as person aggrieved of the offence. The person would be aggrieved, if imputation is against him individually or as a member of a company, an association or collection of persons, that collection of persons being a definite, well-defined, identifiable, determinate group," it was argued.

Need to be vocally critical:

It was also said that he being an opposition leader, he has to be vigilant and critical of the government. While serving his duty as a critic of the government, he is duty bound to cause annoyance and embarrassment to those in power, he argued.

"By the very nature of his task, a politician in opposition cannot always weigh his words in golden scales. Hence it is incumbent upon the courts to focus on the essence and spirit of the speech made rather than on the tone and tenor," the appeal filed by the Congress leader read.

Politically motivated:

The appeal also said that the complaint is politically motivated in nature.

"It is obvious to a critical reader of the complaint and the evidence that the real grievance was the factum of the alleged speech being sharply critical of the head of the Government...The complainant admittedly was an MLA of the Bhartiya Janata Party at the relevant time and was in-charge of the election to one of the Lok Sabha constituencies, which followed after the alleged speech," the appeal said.

Not a defamed member:

Rahul Gandhi further said that there is no Modi Samaj or community, established on record for him to have defamed an entire community.

"The Modh Vanik Samaj and Modh Ganchi Samaj are the communities which are existing for years together. The constitution and other documents relating to the Modh Gachi Samaj or Modh Vanik Samaj have been brought on record and an attempt is made to show that they exist for a long time. But in these documents produced by the respondent/complainant, there is nowhere mention of Modi Samaj," it was argued.

"Modis are 13 crores and obviously as per the ratio of the aforesaid judgments all 13 crore people will not have a right to file the complaint because it is not identifiable, definite, determinate group or collection of persons," the plea further stated.

Should have been aware:

Gandhi also argued that the judge failed to refer to any precedent where in an offence of defamation, the maximum sentence has been imposed to support the finding of sentence.

The judge took a view that a Member of Parliament deserves to be awarded the highest punishment because of his status, it was contended.

"It is therefore expected that the Trial Judge would also be aware of the consequences of awarding a sentence of two years, namely mandatory disqualification. Such disqualification entails the rejection of the mandate of the electorate at one hand and huge burden on the exchequer on the other. It is therefore expected that the Judge would make a mention of a consequence of this nature in the sentencing order," the appeal also read.

Determining the sentencing was shocking:

The offence of defamation falls under the category of summons case as defined in Section 2(w) of the Criminal Procedure Code. However in the instant case, the procedure of warrant case was adopted.

"A summary inquiry was held on the question of appropriate sentence. The issue of grant of probation, which is mandatory in a case like the present one, does not even find a passing reference in the order of sentence and the Ld Trial Court proceeded to award the maximum punishment without giving any adequate opportunity to the parties to assist the Court in this regard," said the appeal.

Rahul Gandhi also referred to a part of the judgment in which the trial court referred to an instance when the Supreme Court admonished him. Taking exception to the same the plea said:

"The Ld. Trial Judge hastily referred to a case where the Hon'ble Supreme Court statedly admonished the Petitioner. No attention was given to the fact that the Petitioner was a first-time offender. He never appeared before the Supreme Court in that case as an offender charged with an offence. The order of the Hon'ble Apex Court did not in any manner provide admissible or relevant material for the Ld. Trial Judge to proceed to award exemplary punishment using the same as crutches," the appeal also said.