Rahul Gandhi appeals defamation conviction: Here is what he has argued

What does the appeal say?

Punishment ‘pronounced in haste, is harsh and excessive’

The appeal states that “ironically” by pronouncing the maximum punishment, the trial court created “an illustration in society of deterrence in a crime which is least societal in nature and which is treated by the Code as one attracting no minimum prescribed sentence”.

The appeal goes on to state that the maximum punishment was pronounced “in hot haste and in a summary manner”. Noting that the magistrate court awarded the maximum punishment “because of his (Rahul’s) status as a Parliamentarian,” the appeal states, “It is therefore expected that the Ld. 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 goes on to submit that “the entire set of circumstances in which the order of sentence was passed again persuades the Appellant (Rahul) to firmly reiterate his reservations about the fairness of trial.”

Rahul’s appeal has called the sentence “harsh and highly excessive”, suggesting that “mere fine or granting probation would have sufficed”. Noting that the complaint was “politically motivated and the cloak of defamation has been used only with a view to advance the political motive,” Rahul’s petition submits that the magistrate court’s observation that Rahul made the alleged defamatory speech for political gains has “no basis for such inference.”

Adding that a “Parliamentarian, in opposition, is expected, rather, required to be vigilant and critical,” and that “a strong and uncompromising opposition is the essential requirement of a true and healthy democracy,” Rahul has argued that by the very nature of his task as a politician in opposition, he “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…Trial Court has missed the import of the above principle both at the stage of appreciation of evidence and also at the stage of sentencing,” Rahul has submitted, adding that the “patently political nature of the case against the appellant looms large over the entire proceedings”.

Conviction passed ‘on the basis of conjecture, not evidence’

Submitting that the conviction and the order of sentence by the magistrate court has been passed on the basis of “assumptions, presumptions, conjectures, surmises and suppositions” instead of on evidence, Rahul’s appeal memo states that the ingredients of IPC sections 499 and 500 (criminal defamation) have “not at all” been satisfied. It has also been stated in the memo that “the documents on record are not properly proved and are not admissible”, given that the magistrate court had also relied on electronic evidence. It is also his case that the magistrate court overlooked the fact that the complainant Purnesh “was not an aggrieved person and had no right to file the complaint,” and for the alleged imputations against PM Narendra Modi individually, only the PM can be considered as the person aggrieved of the offence of defamation and only the PM could have filed a complaint for the same.

The appeal notes that the receipt of “WhatsApp news item cutting”, based on which Purnesh purportedly took cognizance of Rahul’s alleged defamatory statements, has not been considered as evidence and neither has it been proved, which should have been done as it was this cutting that put the complaint in motion. It has also been pointed out that a pen drive which contains the recorded speech of Rahul’s downloaded from YouTube, which was relied upon as evidence by Purnesh, has not been proved beyond reasonable doubt and was only produced on the court’s record in November 2020, more than a year after Purnesh filed the complaint before the magistrate court. The appeal points out that while Purnesh claimed that he downloaded the speech on the pen drive, another witness had claimed that the said witness had downloaded it, thus making the depositions of the two contradictory.

‘Modi does not indicate definite, clearly identifiable group of persons’

His appeal argues that there was no criminal intent to harm and admitting to the fact that Rahul gave a speech at Kolar “doesn’t mean that the contents of the speech are admitted and that there can’t be any tampering.” The appeal points out that the verdict “doesn’t discuss at all whether the persons having surname Modi or persons known as Modi can be said to be identifiable, definite, determinative and well-defined body of persons or not,” and that if the imputation that “why all thieves have surname Modi?” is considered as proven, it “merely suggests that the said sentence was spoken in connection with Narendra Modi, Nirav Modi and Lalit Modi and not the Modi (as a collective group).”

Rahul has added in the memo that he be permitted to place on record “authentic literature showing that the word ‘Modi’ does not indicate any definite, clearly identifiable or determinate group of persons,” and that it is rather widely known that “the surname ‘Modi’ is used even within the Muslims and Parsis besides a number of Hindu castes.”

The memo also raises questions on the documentary evidence provided before the court such as the authenticity of whether Purnesh Modi indeed belongs to the Modi community as his earlier surname was ‘Butwala’, which he then changed to Modi in 1998, according to Purnesh. Rahul in his appeal has pointed out that no certified copy of the name change was brought on record.

Rahul has also submitted that his speech was aimed at addressing PM Modi “as a thief for a substantial reason that the money of the poor people of the country was given away to Shri Anil Ambani,” and that Rahul’s statement as to why the surname of all thieves is Modi, was spoken in relation to “this theme of mis-governance of Shri Modi and not in connection with any Modi samaj or persons holding Modi surname.” His appeals says, “The Ld. Trial Court erred in believing that merely a person suffers pain because of defamatory imputation, he has a right to file complaint”.

What the Magistrate Court had observed while convicting Rahul

In the verdict pronounced by CJM HH Varma on March 23, the court had observed that “the complaint was lodged not only because the ‘Modi’ community or people from the caste were defamed, but because the complainant (Purnesh Modi) himself was distressed. Moreover, the accused could have stopped at calling Shri Narendra Modi a thief (Shri Narendra Modi ne chor nu upnaam aapi ne) and equating him with economic offenders… like Nirav Modi, Lalit Modi, Mehul Choksi, Vijay Mallya. He could have limited the discussion to these people. But the accused intentionally insulted all those with the surname or name ‘Modi’ and said in his speech, ‘Why do all thieves have the name Modi?’.”

The court had said the accused (Gandhi) had admitted many facts in the case in his statements and “if these facts are taken into account, then the accused has accepted the controversial facts”. The court had also noted that despite the SC earlier advising the accused Rahul to stay alert “yet it does not appear as if it has made any difference in the conduct of the accused,” and had held that as a Member of Parliament, what Rahul speaks before the public is taken seriously and thus has a larger impact, which makes the offence “more serious”. “If a milder punishment is handed out to the accused, then a wrong message will go to the public… the purpose of the defamation (law) would not be served and anyone would easily defame anyone,” it stated.