Rahul Gandhi appeal: 'Only Narendra Modi could have filed defamation case, not all with Modi surname' and six other arguments

As reported earlier, Congress leader Rahul Gandhi has moved an appeal challenging his conviction and sentence by a magistrate court in Surat in a criminal defamation case filed against him in 2019..He was convicted on a complaint filed by a former BJP Member of Legislative Assembly Purnesh Modi, who claimed that he had defamed the entire Modi community in a campaign speech at Kolar nearly four years ago. Gandhi had purportedly said, "Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?Judge Hadirash Varma said that since Gandhi is a Member of Parliament (MP), whatever he says will have a greater impact. Thus, he should have exercised restraint..Rahul Gandhi insulted all persons with Modi surname for his political interest: Surat court in conviction order.As a result of his conviction, Gandhi was disqualified as a Lok Sabha MP..Gandhi has challenged chis conviction, through a legal team of Senior Advocate RS Cheema and Advocates Kirit Panwala and Tarannum Cheema.In his appeal against his conviction and sentence, Gandhi has taken several grounds ranging from the complaint being a politically motivated one to the complainant having no right to file the complaint..Here are the seven main grounds argued by Gandhi in his appeal..1. Complainant had no right to file defamation complaint; only Narendra Modi could have filed complaint.Gandhi has contended that the complainant Purnesh Modi was not an aggrieved person for the purposes of Section 499 of the Indian Penal Code (IPC), which criminalises defamation, and thus had no right to file the complaint. It has been pointed out that normally, criminal law can be set in motion by anybody, but so far as the offence of defamation under Sections 499 and 500 is concerned, only a person aggrieved by the offence can file the complaint."...for the alleged imputations against Shri Narendra Modi individually, only Shri Narendra Modi can be considered as the person aggrieved of the offence of defamation and only Shri Narendra Modi can file a complaint for the same and Shri Purnesh Modi the respondent/complainant has no right to file the complaint on his behalf..."Merely because the complainant is a Modi and the defamatory imputation has a word 'Modi', the complainant does not get the right to file the complaint, it is argued..2. Opposition leader has to be vocal critic of the government .In his appeal, Gandhi has said that he being an opposition leader, he has to be vigilant and critical of the government. While serving his duty as a critic of the government, he is bound to cause annoyance and embarassment to those in power."By the very nature of his task, a politician in opposition 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 appeal states. Gandhi pointed out that in his statement, as many as six people were mentioned as economic beneficiaries, namely Nirav Modi, Mehul Choksi, Vijay Mallya, Lalit Modi and Anil Ambani. "It is the undisputed position that some of these persons did not carry or bear ‘Modi’ as the caste or surname. What distinguishes these persons as a group, was the manner in which they carried out their economic activity to the detriment of the national interest and their apparent closeness with the powers that be," he highlighted. .3. Merely because complainant was shocked or his reputation was hurt, doesn't make him an aggrieved person.Gandhi has pointed out that the trial court convicted on the basis of two reasons - that the complainant was shocked at this statements, and that his reputation was hurt. It is contended that these reasons do not make Purnesh Modi an aggrieved person for the purposes of Sections 499 and 500 IPC."A person having extremely sentimental nature would be shocked even if imputations is hurled not upon him, but on others, such a person can't be termed as person aggrieved of the offence. The person would be aggrieved, if imputation is against him individually or as a member of a company, an association or collection of persons, that collection of persons being a definite, well-defined, identifiable, determinate group...".4. Trial court has not dealt with Modis as a Modi Samaj; complainant was not defamed as member of the Modi Samaj.Gandhi has stated there is no Modi Samaj or community established on record for him to have defamed an entire community."The Modh Vanik Samaj and Modh Ganchi Samaj are the communities which are existing for years together. The constitution and other documents relating to the Modh Gachi Samaj or Modh Vanik Samaj have been brought on record and an attempt is made to show that they exist for a long time. But in these documents produced by the respondent/complainant, there is nowhere mention of Modi Samaj."He adds that it is widely known that the surname ‘Modi’ is used even within Muslims and Parsis, besides a number of Hindu castes.The plea further states,"Modis are 13 crores and obviously as per the ratio of the aforesaid judgments all 13 crore people will not have a right to file the complaint because it is not identifiable, definite, determinate group or collection of persons...".5. Complaint is politically motivated.The plea points out that Purnesh Modi's complaint was filed in hot haste with a view to use the same for electoral purposes in the run-up to the 2019 Lok Sabha elections."It is obvious to a critical reader of the complaint and the evidence that the real grievance was the factum of the alleged speech being sharply critical of the head of the Government...The complainant admittedly was an MLA of the Bhartiya Janata Party at the relevant time and was in-charge of the election to one of the Lok Sabha constituencies, which followed after the alleged speech.".6. Perfunctory manner of determining sentence "shocking".The plea states that the offence of defamation falls within the category of ‘summons case’ as defined in Section 2(w) of the Criminal Procedure Code, 1973. However, in the present case, the procedure of a ‘warrant case’ was adopted."A summary inquiry was held on the question of appropriate sentence. The issue of grant of probation, which is mandatory in a case like the present one, does not even find a passing reference in the order of sentence and the Ld Trial Court proceeded to award the maximum punishment without giving any adequate opportunity to the parties to assist the Court in this regard."Further, immediately on pronouncing Gandhi guilty, without giving him an opportunity of composing himself, assessing the situation and consulting the lawyer, the court asked him to make his submissions on the question of sentence."The sentencing order does not even show that the Ld Trial Judge took into consideration the fact that the accused was being awarded the maximum permissible sentence of imprisonment."Gandhi has also referred to a part of the judgment in which the trial court referred to an instance when the Supreme Court admonished him. Taking exception to this, the plea states,"The Ld. Trial Judge hastily referred to a case where the Hon’ble Supreme Court statedly admonished the Petitioner. No attention was given to the fact that the Petitioner was a first-time offender. He never appeared before the Supreme Court in that case as an offender charged with an offence. The order of the Hon’ble Apex Court did not in any manner provide admissible or relevant material for the Ld. Trial Judge to proceed to award exemplary punishment using the same as crutches.".7. Judge should have been aware that two-year sentence would lead to disqualification .Gandhi has argued that the judge failed to refer to any precedent where in an offence of defamation, the maximum sentence has been imposed to support the finding of sentence. The judge had taken the view that a Member Parliament deserves to be awarded the highest punishment because of his status. On this aspect, Gandhi stated,"It is therefore expected that the 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."