Does Rahul Gandhi’s remark about thieves having the surname Modi amount to criminal defamation? No, say several legal experts.
On Thursday, a court in Surat sentenced the Congress politician to two years imprisonment and a fine of Rs 15,000 under Section 499 of the Indian Penal Code (defamation) and Section 500 (punishment for defamation). While campaigning for the 2019 Lok Sabha elections, Gandhi is alleged to have said, “Why do all the thieves, be it Nirav Modi, Lalit Modi or Narendra Modi, have Modi in their names?”
Though the court granted him bail for 30 days in order to allow him to appeal this verdict, on Friday, the Lok Sabha secretariat disqualified Gandhi from the house. Under the Representation of the People Act, 1951, a legislator sentenced to jail for two years or more stands to be disqualified from the date of conviction until six years after serving time.
Gandhi’s statement at the election rally was the basis for Bharatiya Janata Party legislator Purnesh Modi from Gujarat to file a case of criminal defamation against him. The BJP MLA claimed that the Congress politician had “defamed 13 crore people living in the whole of India having the surname ‘Modi’”.
The Surat court agreed. It said that Rahul Gandhi was a member of Parliament whose words would have a substantial impact on the public. It gave him to the maximum punishment under defamation law.
However, many legal experts believe that the elementary constituent of defamation – which is lowering someone’s reputation in the eyes of a reasonable person – has not been not met in this case. In addition, Gandhi’s mention of the surname Modi is vague and does not refer to a specific set of people, they say.
Delhi-based senior advocate Nitya Ramakrishnan said that the judgement suffered from a lack of logic. “The first question is how is it defamation of Purnesh Modi or of all Modis?” she asked.
The statement must be examined to determine whether it intended to lower the moral or intellectual character of the complainant Purnesh Modi, she said. “This is the only reason upon which the complaint could have been entertained,” she said.
However, she noted that Gandhi said that Lalit Modi, Nirav Modi and Narendra Modi are names of thieves. Lalit Modi and Nirav Modi are fugitive businessmen. “Even if he said all thieves are Modis, it cannot be interpreted as all Modis are thieves,” Ramakrishnan said.
The statement did not hurt all Modis, she said, “just as saying that all men are mortal is not the same as saying all mortals are men”.
In this case, she said that the question which must be asked is, “Does it convey to anyone that they should not deal with anyone whose name is Modi?” It does not, she said: “It was a rhetorical and half-jocular remark focusing on three names that were coincidentally ‘Modi’.”
The judgement is flawed, Ramakrishnan said, and did not even meet the first threshold required in defamation cases.
Can classes be defamed?
Though some observers wondered after the verdict whether an entire group of people can be defamed, Section 499 of the Indian Penal Code makes it clear that defamation charges can be brought by “a company or an association or collection of persons as such”. However, the section adds that no imputation can be defamatory unless it “directly or indirectly” lowers the “moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling” in the eyes of others.
However, advocate Apar Gupta, executive director of the Internet Freedom Foundation, noted there needs to be “a very high degree of certainty” that the individual claiming to have been defamed is being identified as a member of the group – which is usually a “well-defined class” of people.
But people having the same surname are, by their very nature, an indeterminate class, Gupta said. “A person will not make an association with the complainant [Purnesh Modi] based on Gandhi’s statement,” he added.
Gupta added that if someone says that all lawyers are crooks, that will not amount to defamation of all lawyers. “However, if someone says that all lawyers of Tees Hazari District Association [in Delhi] are crooks, then that is a determinative body which [and whose members] could bring a claim of defamation,” he said.
Delhi-based senior advocate Siddharth Luthra said that while determining if a community of people has been defamed, “the main point to be noted is that you have to make a link that a person’s statement [about a community] has embarrassed me” as an individual.
He said that this link has to be specific. “For instance, if someone says that all journalists are questionable, that does not mean that any journalist can bring a claim for defamation,” he said.
However, Luthra said that since he had not examined the evidence presented in this case, he could not comment on whether the judgement was correct.
How has the court interpreted it?
In previous instances, the Supreme Court has said that if a community believes it has been defamed, the remarks have to be specific and identifiable. This was illustrated a landmark case from 2010, when an actress made a general claim that incidents of pre-marital sex and live-in relationships in Tamil Nadu and noted that this was not an offence.
Several complaints were filed against her, including several by married women who were politicians and social activists. They claimed that the actress’ remarks had lowered their reputation by suggesting that people of their category engaged in pre-marital sex.
The Supreme Court held that there was no intent to cause harm to complainants nor was there any actual harm caused to their reputations. It added that the complainants were “reading too much” into the actress’ remarks. It was a rhetorical remark which did not suggest that all women in Tamil Nadu engaged in premarital sex and nor was it directed at any individual.
However, in cases where the group is identifiable, the court has upheld defamation claims. Among these was a case from 1965, which related to an article published in a newspaper containing defamatory remarks about public prosecutors in Aligarh. The court said that they were an “identifiable group of prosecuting staff” so could bring a claim of defamation. If they had been an indefinite group of people, such a claim could not be brought, the court noted.