Friday, June 2, 2023

Prosecution Resembling Persecution

While Rahul’s sentence is under Section 500 IPC and disqualification under the Representation of the People Act, is the trial judge guilty of serious misconduct for awarding maximum sentence?

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By Justice Kamaljit Singh Garewal

The Bard of Avon, while describing the end of the Battle of Bosworth Field (1485), in his play Richard III, has King Richard say: “A horse, a horse, my kingdom for a horse.” (Act V, Scene IV, Line 13). King Richard’s mount was fatally wounded under him and he was thrown off. He lost his horse as well as his kingdom. This battle was a defining one in English history, and thus began the Age of Reformation.

At the end of the defamation trial on March 23, 2023, which led to Rahul Gandhi’s conviction and disqualification from the Lok Sabha, the Gandhi scion may well have said: “A joke, a joke, my prime ministerial ambitions for a joke.”

Rahul Gandhi’s remark, which has landed him in a political storm, was totally avoidable and probably spoken in the rhetoric of an election campaign. It was a sentence torn from a long political speech, but it was quite improper and politically incorrect as it directly hit the prime minister. It was also quite a silly thing to say.  

Surnames often become the butt of jokes. This writer, while sitting in a Division Bench, was once addressed (teasingly) as “M’lud Justice Aggarwal” by the Advocate-General of Punjab. The companion judge whispered in my ear: “This is a very offensive remark.” But I didn’t take umbrage, and simply thanked the Advocate-General for giving me a promotion. End of the story. On another occasion, while meeting the chief justice of India on a visit to our court to address a function, I was introduced as Justice Aggarwal. I didn’t feel offended or slighted.

The travails of Rahul Gandhi can be traced to 2013. The Congress-led UPA government brought an ordinance to save MPs and MLAs from immediate disqualification if they were sentenced to two years or more. The ordinance gave them three months time to appeal, before getting disqualified to overcome the Supreme Court judgment in Lily Thomas’ case. What Rahul Gandhi thought of the ordinance is another sad story because what he said at the time was going to haunt him.

Fast forward to 2019. Rahul Gandhi spoke the offensive words in Kolar, Karnataka, but the hurt was felt by an MLA 1,300 km away in Surat, Gujarat. And thus began his prosecution, though not quite persecution, and he was led into a well laid trap. Rahul Gandhi was summoned, tried, convicted and sentenced to two years. Result: immediate disqualification from the Lok Sabha, where he represents Wayanad constituency in Kerala. Nothing illegal or unlawful in what happened. It was all on the basis of the provisions of the Representation of the People, Act, 1951.

Without having read the trial court’s 170-page judgment, one can only say that the defence was very badly conducted. It is obvious that two years’ sentence for a slightly defamatory remark is completely out of proportion to the offence. Anyone can see that the object of the sentence was to ensure Rahul Gandhi’s immediate disqualification from the Lok Sabha. Should the magistrate have imposed such a hard sentence? Can it be believed that the magistrate did not know the consequences?

Rahul Gandhi, as a serious politician, an MP, a leader of a major national party, son, grandson and great-grandson of prime ministers, should not have ignored the gravity of his predicament. He could have overcome it by a simple apology or a plea bargain and got off with a much lighter sentence of fine of only Rs 15,000. He would have been saved the ignominy of disqualification. And earned political peace to continue his political march; he still has East-West to cover.

Surname is a subject which Rahul Gandhi should be clear about or leave well alone. Post conviction, in defence Rahul said he is a Gandhi and is not afraid of anything because his religion is Truth. Everyone thinks he is from the Mahatma’s family, which he is not. Rahul’s grandfather was Feroze Jehangir Gandhi (1912-1960), a rare investigative journalist, an outstanding parliamentarian and an upholder of truth. Feroze Gandhi launched a relentless campaign against Haridas Mundhra in 1957. Mundhra had made government-owned LIC invest Rs 1.25 crore in his six troubled companies to prop up their share price. Feroze Gandhi’s pursuit of Mundhra was much to the dislike of his father-in-law, Prime Minister Jawaharlal Nehru. Ultimately, an inquiry was ordered into the affair, which was conducted by Justice MC Chagla. The indictment against Haridas Mundhra and TT Krishnamachari, Nehru’s finance minister, came in 24 days. TTK resigned and Mundhra had to spend 22 years in prison. Rahul Gandhi should use his grandfather’s name to pursue Adani, but he is seeking the Mahatma to prop him up in his pursuit for Truth, whatever that means in the present context.

Be that as it may, Rahul Gandhi must appeal. On filing the appeal, his conviction shall get suspended and he shall be back in the Lok Sabha. Should he not appeal, he shall be taken into custody after the suspension period of one month gets over, to undergo the two years’ sentence. On completing it, he shall stand disqualified from running for election for six more years. This shall keep him away from Parliament till April 2031.  

The constitutional history of India is witness to the background of the 1st Constitutional Amendment, 1951, when Rahul’s great grandfather had some important clauses of the Constitution re-written to suit his socialist agenda. Rahul’s grandmother was unseated by the Allahabad High Court, which led to changes in law to help her survive and when protests erupted, Indira Gandhi declared Emergency. But being asked to leave the Lok Sabha for the ineptness of his defence team in a defamation trial is an absurd way to be forced to bow out of politics.

One is not certain how many other criminal cases are pending against Rahul Gandhi. If they too start ending in convictions and sentences of two years and upwards, then will those sentences start when the present sentence ends and will the disqualifications kick in after the present disqualification ends? The thought is mind boggling. 

And what happens to the hundreds of other prosecutions against politicians which are awaiting trial. This is a really serious issue. The general public would definitely like to know why MPs and MLAs, who are facing prosecution and who may likely be convicted for two years and above, participate in proceedings till they are disqualified on conviction. The answer is that every accused person is innocent till proven guilty and this presumption of innocence enables him to remain in public life for a long, long time. Parliament must take a holistic view of corruption in public life and decide how to handle MPs and MLAs involved in criminal cases.

Ultimately, it is the criminal justice system which is under test. Too many cases, too much time spent before trial and appellate courts, too many acquittals. All these factors have slowed down the system. If the system collapses under its own weight, then justice itself will become a pipe dream. The justice ministers at the central and state levels must devote more time to monitoring prosecution of criminal cases. Give the guilty quick and condign punishment. Is anyone prepared to work in this direction?

Let us examine what happens after the evidence had been led. The judge must decide if the charges have been proved or not. If proved, then what offence has been committed by the accused, and convict him accordingly. He must then proceed to hear the convicted person regarding the sentences to be imposed on him and announce the verdict. At this hearing, the judge must explore probation or admonition under Section 360 CrPC before awarding prison sentence.

The judgment will disclose the factors which the judge considered in awarding him the maximum sentence of two years. There does not seem to be anything so extreme in Rahul Gandhi’s case to deny probation or admonition or just fine, and award of the maximum prison sentence with an eye to ensure his disqualification. The trial judge seems to have committed serious misconduct. This has sent shock waves for its disproportionality, and made an ordinary prosecution for defamation look like the persecution of the Hon’ble Member from Wayanad.

—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York

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