Courts are established to deliver justice according to law. Sometimes, justice may stumble, but litigants in India can reasonably hope that if they continue the journey on the tortuous path, they will get justice, eventually. With that preface, I shall explain a case that has caught the attention of the whole country and stirred passions on either side of the political divide.
On March 23, 2023, a Magistrate in Gujarat convicted Mr Rahul Gandhi of the offence of defamation (Section 499, IPC) and imposed a sentence of imprisonment of 2 years. After pronouncing the sentence, the Magistrate suspended the sentence. Nonetheless, on March 24, Mr Gandhi was disqualified and his seat in the Lok Sabha was declared vacant.
Here is the path the case travelled:
13-04-2019: Mr Gandhi made an election speech in Kolar, Karnataka
16-04-2019: Mr Purnesh Modi, MLA (BJP), filed a complaint before a Magistrate in Surat, Gujarat, that Mr Gandhi had defamed the entire Modi community
07-03-2022: Complainant sought and obtained a stay of the trial of his own complaint from the HC, Gujarat
07-02-2023: Mr Gandhi’s speech in the Lok Sabha on the Adani Group’s issues
16-02-2023: Complainant withdrew his Petition before the HC, Gujarat
21-02-2023: Trial resumed before the Magistrate
17-03-2023: Trial concluded, judgment reserved
23-02-2023: Magistrate delivered a 168-page judgment, found Mr Gandhi guilty, imposed a sentence of two years’ imprisonment
Shortly thereafter, the Magistrate suspended the sentence
24-03-2023: Lok Sabha Secretariat notified the disqualification of Mr Gandhi
A routine case that meandered for three years, suddenly acquired urgency and surged forward at lightning speed from resumption of trial to conviction in 30 days. The puzzle is, what imparted the urgency? Why did the complainant obtain a stay of the trial of his own complaint and why did he, nine days after Mr Gandhi spoke in the Lok Sabha, withdraw his petition and seek immediate resumption of the stalled trial?
The complainant alleged that the Modi community/caste, to which he belonged, was defamed. Frankly, I do not know whether there is a community called ‘Modi’ or if everyone with the surname ‘Modi’ belonged to one community or caste. The Indian Express has explained (March 28, 2023) that the word Modi “does not denote any specific community or caste. In Gujarat, the Modi surname is used by Hindus, Muslims and Parsis. There are people with the Modi surname among Vaishnavas (Baniyas), Kharwas (fishermen) from Porbandar and Lohanas (who are a community of traders)”. The newspaper also found that there is no community or caste by the name ‘Modi’ in the Central list of OBCs. Also, there is no ‘Modi’ in the Central list for Bihar or Rajasthan. In the Central list for Gujarat, there is ‘Modi Ghanchi’. For me, who had forsworn caste six decades ago and does not recognise caste, the entire argument of defaming a community/caste (allegedly 13 crore-strong) makes the head spin.
Punishment, Sentence Suspended
According to the complaint, it was a case of slander. Under IPC Section 500, the punishment may extend to imprisonment for 2 years, or with fine, or with both. I know of no case since 1860 (when the IPC came into force) where the maximum sentence of imprisonment for 2 years was imposed in a case of slander. Ordinarily, where a sentence of imprisonment for three years or less is imposed, the accused is granted bail so that he is a free person to seek relief from a higher court against the conviction and sentence. However, in this case, within minutes of imposing the sentence, the Magistrate himself suspended the sentence.
Section 8(3) of the Representation of the People Act, 1951, provides that “A person convicted of any offence and sentenced to imprisonment for not less than two years… shall be disqualified from the date of such conviction…”.
In the case of Mr Gandhi there is a conviction but no sentence that is effective or operating. Therefore, did he incur a disqualification on March 23, 2023? It is a moot question. Many have asked the question and are looking for an answer. However, the powers that be had no doubt whatsoever. Within 24 hours, whether they had asked the question or not and whether they had found the answer or not, the Lok Sabha Secretariat disqualified Mr Gandhi.
Who can Disqualify?
Article 102(2)(e) of the Constitution of India provides that a person “shall be disqualified… for being a member… if he is disqualified by or under any law made by Parliament”. Be it noted that the words used are not ‘shall stand disqualified’ but ‘shall be disqualified’, implying that an order of disqualification will be necessary. The obvious question has been asked (by among others Mr P.D.T. Achary, former secretary general of the Lok Sabha), who has the authority to disqualify? Article 103 may contain the answer: it says, “if any question arises… the question shall be referred for the decision of the President” who “shall obtain the opinion of the Election Commission and shall act according to such opinion.” In Mr Gandhi’s case, the question was not referred to the President; nor did the Election Commission offer any opinion. So, who took the decision? Was it the Hon’ble Speaker or a body known as the Lok Sabha Secretariat? No one knows.
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