Rahul Gandhi moves Supreme Court against Gujarat High Court refusal to stay conviction in defamation case for remark on 'Modi' surname

Congress leader Rahul Gandhi has moved the Supreme Court challenging the Gujarat High Court's refusal to stay the conviction and two-year jail term imposed on him by a Magistrate court in a criminal defamation case for his remark "All thieves have Modi surname" [Rahul Gandhi v Purnesh Modi]..Single-judge Justice Hemant Prachchhak of the Gujarat High Court had refused relief to Gandhi on July 7 stating that staying conviction is not a rule and the same must only be exercised in rare cases..The now disqualified parliamentarian from Wayanad, Kerala was convicted by a Magistrate court in Surat on March 23 for his remark "all thieves have Modi surname" which he had made at an election rally in Karnataka's Kolar constituency, in 2019.Gandhi had, in his speech linked Prime Minister Narendra Modi with fugitives like Nirav Modi and Lalit Modi.He had said,"Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?"Purnesh Modi, a former BJP Member of Legislative Assembly (MLA), took exception to the said speech claiming that Gandhi humiliated and defamed persons with the Modi surname.The magistrate court in Surat accepted the contention of Modi that by his speech, Gandhi has intentionally insulted the people with a 'Modi' surname.In his 168-page judgment, 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, the Magistrate ruled."The accused had taken the reference of the surname of the current Prime Minister Shri Narendra Modi, to satisfy his political greed and insulted and defamed 13 crore people living in the whole of India having the surname 'Modi'" the judge held.A sessions court in Surat had, on April 20, dismissed Gandhi's plea seeking suspension of his conviction by the Magistrate court.Gandhi then moved the High Court which too refused to extend relief to him leading to the present appeal before the top court..In his plea before the apex court, Gandhi has contended that the High Court "order has no parallel or precedent in the jurisprudence of the law of defamation in India". As per the plea, an undefined amorphous group which, according to the complainant consists of 13 crore people, has been held to be defamed.."The surname Modi in different parts of the country encompasses different communities and sub-communities, which usually have no commonality or uniformity at all. Secondly, the three specific persons named in the speech, who alone could have possibly suffered prejudice, have admittedly not sued or complained. Instead, the Complainant simply has a ‘Modi’ surname from Gujarat who has neither shown nor been held to be prejudiced or damaged in any specific or personal sense. Thirdly, the Complainant admitted that he comes from Modh Vanika Samaj. This term is not interchangeable with Modi and the Modi surname is present in various castes. He produced no document or certificate in relation to his caste. Fourthly, this is totally contrary to the well established law of defamation which is that to constitute an association or collection of persons, there has to be an identifiable body as distinguished from the rest of the community. Fifthly, the most important ingredient of the offence, an “intention to defame”, has admittedly not been proved in the case on the basis of any evidence," the appeal in Supreme Court states..Gandhi has further contended that the entire approach of the High Court judgement has been to mischaracterize the one-line statement of the petitioner as hugely serious. Further, in a case of criminal defamation, a maximum sentence of 2 years has been imposed which is itself a rarest of rare occurrence. "The sentence has been suspended for the asking; however conviction is not stayed/suspended. This has resulted in the inexorable exclusion of the Petitioner from all political elective office for a long period of 8 years. That too in the world’s largest democracy where the Petitioner has been a former President of the oldest political movement in the country and is also continuously in the vanguard of opposition political activity," the plea says..The plea by Gandhi has been filed through advocate Prasanna S and drawn by advocate Tarannum Cheema and Senior Advocate RS Cheema.