Guest Post: The Treatment of Mens Rea and Group Definitiveness in Rahul Gandhi's Defamation Case [Part Two]

(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]

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.