(This is the second in a two-part guest post by Kartik Kalra. The first part can be accessed here)
The first part of this two-part series has discussed the High Court’s conclusion on the defamatory character of Gandhi’s remarks by decontextualizing his speech, where a single line becomes the prime focus of its analysis. This part further highlights the speech-restrictive implications of the judgement, for the Court dispenses absolutely with requirements of mens rea and group definiteness u/s 499 of the Indian Penal Code, 1860 (“IPC”) – both of which were key to upholding its constitutionality in Subramanian Swamy v. Union of India.
This argument is made in the following manner – first, the High Court’s treatment of mens rea requirements u/s 499 is discussed, where it concludes the presence of intention through knowledge, without offering any reasons justifying the presence of such knowledge; and second, the Court’s treatment of the issue of the Modi community group’s definiteness under Explanation 2 to Section 499 [and the complainant’s locus u/s 199 of the Code of Criminal Procedure, 1973 (“CrPC”)] is discussed, which constitutes a radical departure from extant case-law emphasising on the group’s precise, narrow character whereby each person of the class must be defamed through the group’s defamation.
The High Court’s Treatment of Mens Rea Requirements
Mens rea requirements are necessary to be established for one’s conviction u/s 499, which are dispensed with in the instant case since the High Court concludes their presence solely through conjecture. The Court notes, correctly, that the mens rea requirements stipulated u/s 499 refer both to knowledge and intention, along with an alternative standard of a “reason to believe” – referring to foreseeable reputational harm – for the person targeted through speech. Though the dictum of knowing the natural consequences of one’s acts is well-accepted, the prosecution must still demonstrate how the resultant consequences were the natural consequences of the accused’s acts.
This, very glaringly, is absent – the Court holds the mere presence of the “reason to believe” standard u/s 499 sufficient to conclude its presence in the instant case. Further, it commits the error of equating knowledge and intention. In its refusal to suspend Gandhi’s sentence u/s 389 of the CrPC, the Court notes that “the offence…under Section 499 of the IPC is committed with an intention to make a false statement in connection with election…” [43], without disclosing any material pointing toward the existence of such intention. Subsequently, it uses the argument of intentional commission of the offence to deny suspension u/s 389, suggesting the offence’s seriousness [43]. Later, however, it holds that the only material pointing towards the existence of intention is the presence of knowledge of foreseeable reputational harm – and that intention and knowledge are interchangeably satisfied [47].
47. “Thus, not only intention or knowledge but “reason to believe” is an additional factor to bring the imputer to prosecute. Reason to believe is sufficiently established in the present case and “reason to believe” is on lower pedestal than intention or knowledge. In the present case, all the three ingredients, i.e. intention, knowledge and reason to believe are interredchangeably (sic) satisfied.”
This line of reasoning is deeply erroneous for never can intention be deduced from knowledge. Further, the presence of knowledge of adverse reputational consequences can’t be concluded by proposing a low threshold of the test – there must be analysis of the Court’s own that demonstrates how adverse reputational implications for the Modi community were a natural consequence of Gandhi’s impugned remark. This is evidently absent, and a conclusion on the presence of mens rea has been drawn solely on assumptions.
The Modi Community and Group Definiteness
Since the High Court found that the target of Gandhi’s speech was the entire Modi community instead of specific persons (as discussed in Part I), the next issue concerned the legal possibility of the defamation of a caste group, which the Court notes comprises of 13 crore people [4]. While Explanation 2 to Section 499 of the IPC states that a “collection of persons” may be defamed, Section 199 of the CrPC states that only a “person aggrieved” may file a defamation complaint. There are, therefore, two distinct issues – first, whether the defamed group fulfils the criteria to deem it a “collection of persons” u/s 499, and second, whether the complainant in the instant case was a “person aggrieved” u/s 199.
Courts had considered this issue on many an occasion, and concurred on a principle that the group claiming to have been defamed must be clearly demarcated and definite, whose members must be ascertainable with reasonable precision. Further, it is also well-settled that the complainant must undergo a specific grievance of their own for the complaint to be maintainable, which must be distinct from the general harm suffered by the entire group. In M.P. Narayana Pillai v. M.P. Chacko, a case concerning the defamation of the Syrian Christian community due to a publication alleging that “Syrian Christian girls working abroad are engaged in prostitution for livelihood” [3], the Kerala High Court noted that the group of Syrian Christians was an “indefinite and unascertainable body of people”, and the defamatory material – in order to be brought under Explanation 2 – should have affected each member of the class individually:
"11. Imputations should be capable of being located as aimed at particular individuals or collection of individuals capable of being ascertained. The imputations must relate to all of them also. There cannot be defamation against a community as such…When the defamatory matter affects each and every member of an ascertainable class or group each of them or all of them could set the law in motion…Where persons in the association or collection as such are ascertainable and the words or imputations are shown to be against all the persons in the association or collection as such, any one of the members could make a complaint."
On facts, it found the Syrian Christians too indeterminate to constitute a “collection of persons” under Explanation 2, for they were a “fluctuating mass”, and the publication couldn’t be reasonably construed as lowering the reputation of each Syrian Christian [12]. Further, the Court found that the complainant himself didn’t undergo any specific legal injury other than the allegation of his reputation being lowered due to the defamation of his community’s women, and found his complaint incompetent u/s 199 of the CrPC [12].
The principle necessitating a group’s definitiveness based on the ascertainable character of each member’s reputational loss has been affirmed in many other cases – G. Narasimhan v. T.V. Chokkappa found the defamation of a “Conference” whose members were unknown insufficient to constitute a “collection of persons”, for no individual could claim having been defamed due to the Conference’s reputational loss [22]; Dhirendra Nath Sen v. Rajat Kanti Bhadra found the alleged defamation of an “Ashram” to fall outside Explanation 2, for the Ashram was indeterminate, and one’s reputational loss through the Ashram’s membership unforeseeable [5]; Balasaheb Keshav Thackeray v. State of Maharashtra found “Congressmen” an unidentifiable group, for its defamation didn’t make each member “legitimately feel the pinch of it” [7]; Narottamdas L. Shah v. Patel Maganbhai Revabhai found defamatory remarks concerning “Vakil Alam” as falling outside Explanation 2, for they weren’t “referable to a person or a group of persons” [57]; Raj Kapoor v. Narendra found a disparaging representation of the Scheduled Castes in a movie insufficient to bring the group within Explanation 2 due to the absence of ascertainable members who underwent a reputational loss [2-3]; and Kalyan Bandyopadhyay v. Mridul De found the defamation of the Communist Party of India (Marxist) to fall outside Explanation 2, for it wasn’t as if “each and every member…[got] individually defamed when an insinuation [was] made against the party as a whole” [13].
On this basis, therefore, Explanation 2 had been read to require the demonstration of reputational loss of each member of the group – primarily in terms of its reasonable foreseeability – for the group to constitute a “collection of persons”. Subramanian Swamy, to justify the constitutionality of Explanation 2, relied exactly on these principles emphasising the definitive, determinate character of the group claiming to have been defamed:
178. “The aforesaid enunciation of law clearly lays stress on determinate and definite body. It also lays accent on identifiable body and identity of the collection of persons. It also significantly states about the test of precision so that the collection of persons have a distinction. Thus, it is fallacious to contend that it is totally vague and can, by its inclusiveness, cover an indefinite multitude. The Court has to understand the concept and appositely apply the same. There is no ambiguity.”
The Supreme Court's expectation in Subramanian Swamy that courts would appropriately assess a group’s definitiveness to examine its suitability under Explanation 2, however, seems to have gone unmet. In the instant case, an analysis of the foreseeability of reputational loss for each member of the Modi community is evidently absent, for the High Court creates a position of law of its own in holding that each caste group constitutes a “collection of persons” independently, without warranting any other analysis. Based on this proposition, the High Court proposes that the treatment of the Modi community as one such group would merely be a commonsensical application of this position of law –
45. “…Further, “Modi” people are a fraction of Ganchi / Taili / Modhvanik Ghnyati, as per the evidence and thus, again a well-defined identifiable / suable class. Like persons are having “Patel” Community as well as surname, “Jain” Community as well as surname, “Modi” is also a community and surname both.”
Based on this reasoning, it finds that the Modi community is a “collection of persons”, without bothering much into whether each of its members can be said to have reasonably undergone a reputational loss. It doesn’t enquire into compliance with Section 199 of the CrPC either, holding that the sole requirement to be fulfilled by any complainant is merely to belong to the defamed class, nothing else [45]. This principle is an acute misrepresentation of the high threshold of the complainant’s specific legal injury laid down in case-law above, by whose standards no indeterminate caste-group with an unforeseeable reputational loss could fall within Explanation 2.
Conclusion
The Gujarat High Court’s judgment in Rahul Gandhi, it is submitted, is deeply flawed in considering the principles of defamation law. Its implications may prove highly burdensome on free speech. The judgment departs from well-established principles on the treatment of classes under Explanation 2 to Section 499 of the IPC, errs on fundamental aspects of criminal law such as the difference between knowledge and intention, decontextualizes the speaker's remarks by ad-nauseum analysing a single line, and goes to the extent of labelling the offence one involving moral turpitude. The judgment ought to cast serious reflection on the sustained constitutionality of Section 499 IPC, which had been upheld on the hope and expectation that a basic minimum judicial responsibility in administering the clause would be exhibited by courts. An expectation which has been demonstrably left unmet in this case.
[Note: At the time of publication of this post, a challenge has been filed before the Supreme Court against the decision of the Gujarat High Court]
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