India: Rahul Gandhi's defamation case raises serious concerns

In India Congress leader Rahul Gandhi should have had his conviction in a criminal defamation case overturned by now.

Instead, the matter is all set to reach the doors of India’s Supreme Court. In March, a court in Surat in Gujarat had sentenced Rahul Gandhi to 2 years in jail for his speech during the 2019 Lok Sabha campaign, where he had named three people with the surname Modi- the PM, Lalit Modi and Nirav Modi, and said “how come all thieves have the common surname Modi?”.

This was a grave offence as per the court which gave Rahul Gandhi the maximum possible sentence for the same. The conviction lead to his disqualification as a member of Parliament.

Moral turpitude

Earlier this month however the Gujarat High court not only declined to give him any relief but also justified the lower court’s order, saying the offence committed by the accused falls in the category of “moral turpitude” and that the “need of the hour” is to “have purity in politics”.

While rejecting Gandhi’s argument that defamation did not amount to a serious offence like murder, the High court said “the present conviction is a serious matter, affecting a large segment of the society …another factor which compounds the case against the petitioner is that the defamation alleged was of a large identifiable class and not just an individual.” Really?

Has everyone in India with the surname Modi been offended and lost any sleep over this comment made 4 years ago? There must be thousands of Modis in the country. How has the High Court reached this conclusion when there has been only one complainant in the case, that too a person who was not even named by Rahul Gandhi?

It is disturbing to see how far the courts have gone to justify the conviction of an opposition leader which has kept him out of Parliament.

Used to settle scores

Ok, lets say you don’t agree with Rahul Gandhi’s remarks and that you find what he said distasteful and offensive. But does he deserve a jail term, that too for two years, for saying this? This is at the heart of the controversy surrounding India’s criminal defamation law.

Defamation as a criminal offence was first introduced by the British in India in the 1800s, essentially to protect the ruling establishment and prevent any free speech or discussion.

Much like the sedition law, this is an outdated colonial law that should have been struck off long ago. Instead, it has been used to settles scores, to harass, and to curb free speech.

The definition of what constitutes defamation is vague while the process can drag people to far away corners of the country where a case may have been filed. Ironically, it was the Supreme Court that upheld the criminal defamation law in a judgment back in 2016.

The same law was used by former minister MJ Akbar to sue journalist Priya Ramani after she accused him of sexual harassment. He lost the case in the lower court but as we all know, the process is the punishment in India.

No place in a democracy

The Supreme Court has made it clear that the collection of persons allegedly defamed must be identifiable i.e. that one could say with certainty that a group of particular people has been defamed, as distinguished from the rest of the community.

As Congress MP and lawyer Manish Tewari recently wrote, “if a person complains that he has been defamed as a member of a class, he must establish the definite nature of that class and that the imputation that was made against him personally.” It again begs the question as to how the complainant in Rahul Gandhi’s case can claim to be offended personally.

Criminal defamation no longer exists in the UK or at the federal level in the United States. Though 24 US states still retain criminal defamation provisions but these are not enforced thanks to restrictions imposed by the US Supreme Court.

In New Zealand, criminal defamation was abolished in 1993.

And that is the way it should be. Criminal defamation has no place in a democracy. Especially in political speeches made in the heat of election campaigns.