Congress leader Rahul Gandhi’s disqualification as a Member of Parliament following his conviction and sentencing in a criminal defamation case is continuing to dominate the news feed across print, electronic and social media. Meanwhile, the Gujarat High Court in its order on July 7, has refused to stay his conviction while upholding the cause of “purity in politics”. Justice Hemant M Prachchhak of the High Court while emphasising that representatives of the people should be “men of clear antecedents,” observed, “It is now the need of the hour to have purity in politics.”
Interestingly, Justice Bechu Kurian Thomas of the Kerala High Court showed a middle path while suspending the conviction of Lakshadweep MP Mohammed Faizal in an attempt-to-murder case in January this year. He observed, “It is necessary that purity in politics and, consequently, in democracy is required to be infused. The decriminalisation of politics is an essential requirement of every democracy. As a constitutional court, it is the bounden duty to advance the constitutional objectives, including purity in politics. “However, those lofty principles cannot be the reason for denying the application of the principles of rule of law. The societal interest in averting an expensive election that too when the elected candidate can continue for a limited period alone if the fresh election is conducted cannot be brushed aside by this court. The societal interest and the need to have purity in politics and elections will have to be balanced.”
The Kerala High Court had said the ramifications of not suspending Mr Faizal’s conviction were “drastic not only for the second petitioner [Faizal] but even for the nation… The cumbersome process of elections will have to be started, and the exorbitant cost of a parliamentary election will have to be borne by the nation and indirectly by the people of this country.”
However, it appears that the Gujarat High Court has clearly emphasised on the higher values in public life and seems to have seen more societal interest in decriminalising politics than avoiding fresh elections and therefore, showing unnecessary leniency would mean to defeat the verdict of the Supreme Court in the Lily Thomas Vs Union of India and Ors (2013).
However, both the Gujarat and Kerala High Courts, have agreed on one point, that is the suspension of conviction was only an exception to be resorted to in rare cases and cannot to be adhered to as a rule.
It is now awaited to be seen, how the Supreme Court, if Mr. Gandhi appeals, examinesand views, as to whether the case comes under such an “exceptional” category where conviction would cause irreparable loss to the person, the constituency to which he represents and to the nation.
However, Rahul Gandhi’s counsels had already referred to the decision of the Supreme Court in the Sayed Mohammed Noorul Ameer case, in which the Supreme Court had held that conviction of a sitting MP fell within the category of rare and exceptional circumstances and that the ramifications, if the conviction were not suspended, would be “enormous”.
The counsels for Mr Gandhi attempted to downplay his alleged defaming utterances as mere “political hyperbole or satire”. It was further argued that he had already missed a parliamentary session and might miss another one and he would thereby be deprived from raising his democratic voice in the Parliament. And as such, if his conviction was not stayed, his disqualification would extend to a “virtually semi-permanent period”.
The Congress leader’s team of lawyers went on to defend his case by relying on an array of decisions of multiple High Courts, all of which had held that the failure to suspend the conviction of a sitting lawmaker would lead to “irreparable loss” and shall also burden the public exchequer with an untimely by-election.
However, the Gujarat High Court in its verdict concluded that defamation was a “serious offence” as it affected the reputation of a large section of the society and therefore amounted to moral turpitude as it is obvious that Mr Gandhi being a senior leader of the oldest political party, his every utterance would gain large publicity.
Besides, the High Court relied upon the apex court’s decision in the Jyoti Basu case, in which it was held that the right to elect or to be elected was not a fundamental right but only a statutory right.
The essential takeaways from the High Court order are:
Rahul Gandhi sought a stay on nonexistent grounds.
"It is a well-settled principle of law that stay of conviction is not a rule but an exception to be resorted to in rare cases."
“The trial court's order is just, proper and legal and there is no need to interfere with the said order. The disqualification is not limited to only MPs and MLAs,"
Gandhi's conviction under Section 499 (defamation) of the Indian Penal Code (IPC) was not just against one person but a large segment of society, an identifiable class.
"The public standing of the petitioner and the fact that any utterances of the petitioner attract a large scale publication gravely impair and damages the reputation of the complainant (Purnesh Modi) and the identifiable class in question (Modi community)."
The offence committed by the accused fell in the “moral turpitude” category and that he gave a false statement to affect the outcome of the result. As suggested by the petitioner, the offence of defamation cannot be ignored as a mere trivial offence.
"The present conviction is a serious matter affecting a large segment of society and needs to be viewed by this court with the gravity and significance it commands. It is now a need of the hour to have purity in politics,"
"Representatives of people should be men of clear antecedent"
"It is needed to have purity in politics. A complaint has been filed against (Gandhi) by the grandson of Veer Savarkar in Pune Court after Gandhi used terms against Veer Savarkar at Cambridge,"
Rahul Gandhi, being a Member of Parliament, possessed a high position in society and was therefore duty-bound not to scandalise any person from the society; and besides, the defence of fair comment is neither proved nor believed by the courts.
(The writer is Additional Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)