Guest Post: Dystopian Defamation Law — On the Gujarat High Court's Judgment in the Rahul Gandhi Defamation Case [Part I]

(This is the first of a two-part guest post by Kartik Kalra)

The Gujarat High Court delivered its judgement in Rahul Gandhi v. Purnesh Modi this week, where it was tasked to decide Gandhi’s application u/s. 389 of the Code of Criminal Procedure, 1973 (“CrPC”) to quash his conviction u/s 500 of the Indian Penal Code, 1860 (“IPC”) for defaming the Modi community – a caste group consisting of 13 crore people – by uttering the words “Saare choro ke naam Modi Modi Modi hi kyu hai?” (which roughly translates to “why do all thieves have Modi as their name?”) [51] at a political rally in 2019. The Court found that the Modi community was sufficiently definite to constitute a “collection of persons” under Explanation 2 to Section 499 of the IPC [45]; that Gandhi’s statements were defamatory u/s 499, for they were false, and were uttered with the “reason to believe” that they would lower the Modi group’s reputation in the estimation of the others [47]; and that the invocation of the Prime Minister’s name, the proximity of the impugned statements to national elections, and Gandhi’s position as the “president of the party (sic) ruled in country for more than 50 years” made the offence one involving “moral turpitude”, which did not warrant suspension u/s 389 of the CrPC [43, 45].

This two-part series highlights the dystopian character that criminal defamation acquires through this judgement, whereby one can be convicted for an offence without satisfying any of its ingredients. The judgement concludes the commission of the offence of defamation by assuming ingredients that were either evidently absent, or whose presence was extremely onerous to demonstrate – from Gandhi’s mens rea, the falsity of his remarks, the contextual meaning of those remarks, to the complainant’s locus u/s 199 of the CrPC and the definiteness of the Modi group. 

In this part, I propose that the High Court assesses the defamatory nature of Gandhi’s remarks in a manner divorced from his remaining speech, and upheld the conviction based on a highly non-obvious, unreasonable construction of his remarks. This argument is made in the following manner – first, an overview of the judgement on its legal issues is provided, where I highlight the interpretive tools invoked by the Court to disadvantage Gandhi; and second, the Court’s treatment of the ingredients of Section 499 is discussed, where I propose that the Court abstained from entering into a concrete enquiry, concluding the presence of the offence’s ingredients primarily through conjecture.

Guilt by Conjecture – An Overview of the Judgement

The case concerned Gandhi’s applications for suspending his conviction and sentence, meaning that the High Court had to assess the validity of his conviction by the Sessions Court, or alternatively, suspend his sentence and decide his appeal later. The Court, through a single judgement deciding both applications, affirmed the Sessions Court’s judgement, holding that his conviction (and two-year sentence) u/s 500 was valid.

In order to reach this conclusion, the High Court notes that its powers u/s 389 cannot be exercised when the impugned offence is serious, or involves “moral turpitude” [43-5]. In order to determine whether Gandhi’s defamatory remarks fall within these categories, it conceptualises Gandhi as an individual with extraordinary responsibility, whose remarks carried the potential to destabilise the national elections. It noted that the impugned remark, which rhetorically asked why every thief has “Modi” as their name, was false – without any elaboration how. This falsity, it held, constituted an independent offence u/s 171G of the IPC – which penalises making false statements in connection with the character of an electoral candidate, adding to the offence’s seriousness [45]. Lastly, it noted that Gandhi invoked the “name of the Hon’ble Prime Minister to add sensation, apparently and for an intention to affect the result of the election…”, which, when seen with the factors above, made Gandhi’s offence one involving “moral turpitude” [45]. Once the Court concluded that the offence involved moral turpitude, all was mostly lost, with the Court refusing to suspend Gandhi’s conviction.

Following its conclusion on the offence’s seriousness, the High Court next examined two connected issues – first, whether the Modi community was sufficiently definite to constitute a “collection of persons” under Explanation 2 to Section 499 of the IPC; and second, whether the complainant in this case (a legislator from Gujarat), was a “person aggrieved” u/s 199 of the CrPC. In case the former requirement was absent, the imputation won’t be “defamatory” in the first place, and in case the second requirement went unsatisfied, the trial would be vitiated, for Section 199 is a mandatory provision. The Court found, deviating from a settled position, that the Modi community was a definite caste-group, constituting a “well-defined identifiable/suable class” [45]. It noted that the question of a group’s definitiveness was primarily a question of fact already decided by the Trial Court, not warranting additional analysis. As a principle of law, it indicated that each and every caste group may constitute a “collection of persons” by itself – and that treating the Modi group as one is merely a commonsensical application of this principle [45].

Once it held the Modi group sufficiently definite to constitute a “collection of persons” under Explanation 2, it noted that the only thing required to be done by the complainant – in order to be a “person aggrieved” u/s 199 of the CrPC – was to belong to the Modi group, nothing else [45]. This approach had been rejected almost unanimously by courts up till this point, instead requiring proof of a specific legal injury in terms of lowering one’s reputation by virtue of group membership just for the complaint to be maintainable – which is assessed before analysing the offence’s actual ingredients. That stage, following the general tenor of the judgement, also contains minimal reasoning, where it takes the offence’s ingredients for granted to an extent that it doesn’t devote to them a single line. It only discusses Gandhi’s mens rea, holding that it is present, just because it is, and on account of this found the offence was too serious to warrant suspension of his conviction [47]. The Court finds that Gandhi must have had a reason to believe that his remarks would cause foreseeable reputational harm to the Modi community, without entering into an analysis of the reasons necessitating such foresight on his part. Such an analysis would inevitably have assessed the contents (and context) of Gandhi’s speech, which the Court wasn’t very willing to enter. Its conclusion on the foreseeability of the Modi community’s loss of reputation, therefore, stands primarily on conjecture. 

Decontextualized Defamation – the Court’s Treatment of Section 499’s Ingredients

While the Court doesn’t undertake a full-fledged analysis of the impugned remarks’ satisfaction of Section 499’s ingredients, it does label Gandhi’s remarks false at two occasions [45], and concludes the presence of mens rea to lower the reputation of the Modi community [47]. 

This enquiry is insufficient, for it aligns neither with the text of Section 499 nor with tests as explained by courts. Jeffrey J. Diermeier v. State of West Bengal is one such case laying down the test u/s 499, which has been affirmed in Subramanian Swamy. It proposes that the ingredients of the offence are found both in the text of Section 499 and Explanation 4, with the latter laying down evidentiary requirements of demonstrating loss of reputation. The ingredients, overall, are three – 1) there must exist a defamatory imputation; 2) the imputation must lower the complainant’s character in the estimation of others, or portray them in a loathsome or disgraceful manner; and 3) the accused must have the intention, knowledge or a reason to believe that the imputation would carry adverse consequences for the complainant's reputation [24-5]. In the instant case, the High Court doesn’t do minimal justice to any of these requirements, concluding the commission of the offence primarily on conjecture.

The High Court, it must be noted, commits a glaring error in assessing the first two ingredients– it decontextualizes Gandhi’s speech by reducing it to a single line, attempting to portray as its primary purpose the targeting of the entire Modi community. The defamatory nature of a single line cannot, for obvious reasons, be analysed by divorcing it from the remaining speech. In order to assess whether a person would undergo reputational loss by virtue of a remark, it becomes necessary to assess the context in which the remark was delivered, and then assess its overall effects in the mind of a reasonable person.

Khushboo v. Kanniammal was a defamation case concerning an actress’ remarks indicating the incidence of pre-marital sex in Tamil Nadu, where the complainant proposed a construction of her remarks to mean “all women in Tamil Nadu have engaged in premarital sex” [27]. The Supreme Court refused to interpret her remarks in this manner, holding that they were only a “general endorsement of premarital sex”, and weren’t directed at any particular individual or collection [24]. Similarly, in Raj Kapoor v. Narendra, a defamation case concerning a movie allegedly disparaging persons belonging to the Scheduled Castes, the Gujarat High Court had assessed the context in which the disparaging imputation was made, and concluded that a reasonable construction thereof would note its purpose as challenging norms of orthodox Brahminism and casteism. On this basis, it held that no case lies u/s 500, for a single disparaging line can’t be divorced from its context and purpose of critiquing caste society. 

Tests on other speech-restrictive provisions of law, such as obscenity, also employ the same standards – the obscene nature of a publication, pursuant to Aveek Sarkar v. State of West Bengal, must take into consideration the entirety of the publication, not a single decontextualized component [24]. 

The point, therefore, is that the assessment of a single ostensibly defamatory line, decontextualized from the remaining speech, is an incorrect mode to appreciate the satisfaction of Section 499’s ingredients. This decontextualized assessment, however, is exactly what the Court does. It refers repeatedly to the single line extracted above, refusing to examine the components of the speech providing context. Apart from the impugned remark asking why every thief has their name as Modi, consider the following other segments of the speech (source), appearing a few moments before and after* –

• Aapse kehte hain kaale dhan ke khilaf ladai… (1:41-1:43) — They say they are fighting the plague of black money…
• Aapko dhoop mein bank ke saamne khada karte hain… (1:51-1:53) — They ask you to stand in front of banks in hot weather…
• Aapke jeb mein se paisa nikaal ke bank mein daalte hain… (1:56-1:59) — They take money from you and put it into their bank…
• Aur phir aapko pata lagta hai, ki aap hi ka paisa Nirav Modi utha ke bhaag gaya… (2:05-2:09) — Then you get to know that Nirav Modi has stolen your money and run away…
• 35,000 crore rupay aapki jeb se nikaal kar uski jeb mein… (2:17-2:20) — They took Rs. 35,00 crore from you, put it into his pocket…
• Mehul Choksi, Lalit Modi… (2:31 –2:39) — Mehul Choksi, Lalit Modi…
• Acha, ek chhota sa saval hai, sabke naam…sab choro ke naam…Modi, Modi, Modi kaise hain? (2:41-2:47) — I have a small question, how do all thieves have their name as Modi?
• Nirav Modi, Lalit Modi, Narendra Modi…aur thoda dhoondenge toh aur bohot saare Modi niklenge… (2:55-3:01) — Nirav Modi, Lalit Modi, Narendra Modi…if you search, you will find a lot more Modis…
• Unhone notebandi ki, chhote dukandaro ko…small-medium business waalo ko nasht kiya…zindagi barbaad ki… (3:12-3:19) — They did demonetization, they destroyed small and medium businessmen…destroyed their lives…
• Uske baad gabbar singh tax lagu kiya, doosra jhatka maara… (3:32-3:35) — They introduced the gabbar singh tax thereafter, which was a double whammy…
• UPA, congress party ki sarkar aane do, kuch hi mahine mein gabbar singh tax ko hum sacchi GST mein badal denge… (3:45-3:54) — Let the UPA/Congress Party come to power, we will transform the gabbar singh tax into a true GST…

[*The time stamps correspond to the utterance of the words in Hindi, and do not consider their Kannada translation appearing thereafter.]

Apart from the impugned remark shown in bold, the Court doesn’t consider surrounding paragraphs colouring it or providing it context. The speech begins with an expression of dissatisfaction with the state’s economic performance, alleges existence of its nexus with crony capitalists, and lastly alleges the government’s role in stealing public funds. It is in context of these comments that the impugned remark – asking why thieves share the name “Modi” – is made. Based on a reasonable, contextual construction of the impugned remark, it is fairly clear that the recipient of Gandhi’s rhetoric is the Prime Minister – or at best – the set of capitalists he alleged benefitted through the former. When seen in context, the nature and purpose of the speech don’t appear to be a simplistic targeting of the Modi community in entirety, referring instead to specific individuals. The Court does acknowledge this context at one occasion, but invokes it – consistent with its general tenor – to Gandhi’s disadvantage. It notes that despite the Prime Minister having been specifically named, the offence still remained the defamation of the entire Modi community. Instead, it notes that this reference to the Prime Minister made the offence of defaming the Modi community much worse, for it “add[ed] sensation” and was designed to “affect the result of the election…” [43].

Conclusion

The Gujarat High Court’s affirmation of Rahul Gandhi’s conviction stands, therefore, on extremely shaky ground, for it doesn’t undertake the minimal task of appreciating his remarks in context. The Court’s extraction of a single line to demonstrate its defamatory implications for the entire Modi community is an unreasonable, far-fetched and non-obvious interpretation of his speech, for its political character – especially in terms of its specific targeting of political opponents – was fairly clear. The judgement’s implications on political speech may be immense, for a chilling effect induced by the possibility of one’s words being twisted and turned to constitute a penal offence is inevitable. 

The speech-restrictive implications of the judgement are discussed further in the following part, where I highlight the Court’s radical departure in assessing group definiteness and its foundational errors in evaluating mens rea.