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Journalism of Courage
The standard test that a court has to apply for staying the conviction of an offence is two-pronged. First, the Code of Criminal Procedure requires that it is not a serious offence and second, a 2014 precedent of the Supreme Court requires that it is not an offence involving moral turpitude.
The 125-page ruling of the Gujarat High Court on Friday applied this test and held that Congress leader Rahul Gandhi’s conviction in the criminal defamation case is both a “serious offence” and one that involves “moral turpitude”.
“It appears that the accused is a Member of Parliament possessing high position in the society and having bounden duty to scandalise any person from the society and the defence of the comment is need approved, not believed by courts below. The revisioner has breached modesty, even if his version is accepted and further revisioner owes a duty to each individual and society in general not to influence the election on the basis of false facts. Thus, under the facts and circumstances of the case, the offence committed by the accused falls in the category of moral turpitude also,” the court said.
In a 2014 judgment in Shyam Narain Pandey v State of Uttar Pradesh, the Supreme Court mentioned moral turpitude as one of the factors to consider while staying a conviction. While the phrase is not defined in law, offences involving moral turpitude are understood to include crimes such as murder or rape.
Section 389 of the Code of Criminal Procedure that deals with staying a conviction requires the convicted person to satisfy the court that he is sentenced to imprisonment for a term not exceeding three years. This is understood to mean that the conviction is not of a “serious offence”.
Section 2(54) of the Indian Penal Code defines “serious offences” as offences for which the punishment is imprisonment between three and seven years.
On March 23, a magistrate court in Surat convicted Rahul for criminal defamation under Section 499 of the IPC. The provision carries a maximum sentence of two years, which Gandhi was awarded, and is a bailable and non-cognizable offence. Under the IPC definition, it would not qualify as a “serious offence”. However, the court interprets the provision as a serious offence linking it to “human dignity and fundamental rights of persons who are defamed…”
“The offence of Section 499 can certainly be considered to be a serious offence of having a large public character, thereby affecting the society at large in a given case wherein a large number of persons of the society have been defamed. The offence of defamation is not to be ignored as a mere trivial offence as has been sought to be suggested by the petitioner, rather it must be examined from the point of view of mischief that the provision seeks to control and also from the point of view of the alleged defamation being of an individual or a larger class,” the High Court stated.
