Thursday, February 29, 2024

An Unholy Tool

As Rahul Gandhi fights a slew of cases, the weaponisation of defamation suits for political upmanship and as a pressure tactic has become apparent, leading to prolonged headache for the defendant.

By Sanjay Raman Sinha

On May 2, former Congress president Rahul Gandhi failed to get any interim relief from the Gujarat High Court in the criminal defamation case against him for his remark, “All thieves have Modi surname.” The single-judge bench of Justice Hemant M Prachchhak reserved its verdict on a plea filed by Gandhi seeking stay on his conviction by a magistrate court. The final verdict in the matter will be pronounced after the summer vacation.

Justice Prachchhak’s order stated: “It is in the interest and fitness of the case, that the matter be decided finally and no interim protection be granted at this stage. Hence, the matter is kept for final judgment post summer vacations.” Gandhi’s advocate Abhishek Manu Singhvi had pleaded for suspension of the conviction, saying that he had not committed any serious crime. Singhvi argued that the case in which Gandhi had been sentenced to two years was neither serious nor involved moral turpitude.

On April 2019, Gandhi had asked at an election rally in Kolar, Karnataka: “How come all thieves have Modi as the common surname?” A Surat trial court had on March 23 sentenced him to two years in jail after convicting him under Indian Penal Code Sections 499 and 500 (related to criminal defamation). The case was filed by BJP legislator Purnesh Modi. Following the court ruling, Gandhi was disqualified as an MP from his Wayanad Lok Sabha seat as per provisions of the Representation of the People Act.

Gandhi has been facing a slew of defamation cases in courts all over India. This, despite the fact that a Supreme Court bench of Justices AM Khanwilkar and JB Pardiwala in July 2022 had observed: “We are of the opinion that multiplicity of the proceedings will not be in the larger public interest.’’

The cases against Gandhi are mostly filed by BJP functionaries or members of the RSS. He has, however, got relief in some cases. One of them was when the Patna High Court stayed trial proceedings against him in a defamation suit filed by Sushil Modi. The Court held that the lawsuit was based on the same comment at Kolar for which the Gujarat trial court had given him a sentence and hence, he cannot be put on trial for the same offence. The Court, however, rejected Gandhi’s plea for exemption from personal appearance in the Modi surname defamation case. The list goes on.

Defamation suits are heavily biased towards the claimant, the person who claims he has been defamed. The burden of proof is usually on the defendant, the person who made the statement. He has to prove his innocence. This legislative tilt makes defamation a perfect instrument for those who want to create trouble. The weaponising of defamation lawsuits is proving not only an unholy tool for political upmanship, but also stifling freedom of expression. The defendant’s public persona can be considerably soiled in prolonged litigation and subsequent media coverage. Oftentimes, crores are demanded by way of compensation and this can act as a pressure tactic on the defendant. 

Political history has shown numerous examples of this. AIADMK’s J Jayalalithaa had filed 213 defamation cases against political opponents and media houses, including those who had speculated about her health and private life.

The multiplicity of cases filed in various courts is a much used strategy to make the life of the defendant difficult and his incarceration almost permanent. Take the case of Mohammed Zubair, a fact-checker and journalist who highlighted BJP spokesperson Nupur Sharma’s controversial comments against Prophet Muhammad. He was kept in jail for 23 days and released after intervention of the top court. While releasing Zubair, the Supreme Court noted: “Mohammed Zubair is trapped in a vicious cycle of the criminal process where the process has itself become the punishment. The machinery of criminal justice has been relentlessly employed against the petitioner. It also appears that certain dormant FIRs from 2021 were activated as certain new FIRs were registered, thereby compounding the difficulties faced by the petitioner.”

Similarly, separate FIRs were registered against former BJP spokesperson Nupur Sharma for her remarks on Prophet Muhammad. When Sharma appealed to the Supreme Court to transfer all her cases to Delhi, the Court gave her relief by clubbing all of them and ordering that they be heard in Delhi.

Clearly, this sort of clubbing can be one way in which the defendant can find relief against the battery of cases filed at different courts with the sole aim of harassing him. Clubbing also helps in orderly dispensation of justice and non-duplication of hearings. As in Rahul Gandhi’s case with around 10 defamation cases running simultaneously in different courts of the country, clubbing can be a relief.

The remedial nature of Article 32 of the Constitution and the protection of rights which it offers forms the core principle for the proposed consolidation of FIRs and cases.

Defamation laws, though a product of colonial law, have the legal sanction of the Supreme Court. The Court has ruled that the criminal provisions of defamation are constitutionally valid and not in conflict with the right to free speech.

In the current scenario, the wrong use of defamation laws makes them seem unsound. Shorn of ulterior motives, defamation is a shield against reputation and character assassination. Intentional defamation is punishable with imprisonment and exacts reasonable restriction on the right to free speech and expression.

In a tight spot

Many defamation cases have been filed against Rahul Gandhi for various comments of his.  

2023: Rahul Gandhi was convicted and sentenced to two-year jail by a court in Surat in the Modi surname defamation case.

2019: In another Modi surname defamation case, he was granted bail by a Patna court.

2019: Rahul Gandhi was granted bail by an Ahmedabad court in another defamation case. The case was filed by Ahmedabad District Cooperative Bank after he alleged that the bank was involved in a scam of swapping currency notes following demonetisation.

2019: Rahul Gandhi was granted bail by a Mumbai court in a defamation case filed by a worker of the RSS where he allegedly linked the murder of Bengaluru journalist Gauri Lankesh with BJP-RSS ideology.

2016: A Guwahati court granted bail to Rahul Gandhi in a defamation case filed by the RSS after he alleged that he was stopped by the RSS from entering Barpeta Satra in Assam in December 2015.

2016: A court in Maharashtra’s Bhiwandi granted bail to Rahul Gandhi in a case filed by a worker of the RSS where he allegedly said that the RSS had killed Mahatma Gandhi.


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