Everyone is shocked at Rahul Gandhi’s conviction and immediate ouster from the Parliament. But why is no one talking about his supposed crime. How does the Indian law define criminal defamation—and why do most free speech advocates oppose it?
First: Where we are now
A quick recap: As we explained in the Big Story on Friday, Gandhi was convicted on charges of criminal defamation for saying this at a 2019 election rally:
I have a question. Why do all thieves have Modi in their names whether it is Nirav Modi, Lalit Modi or Narendra Modi? We don’t know how many more such Modis will come out.
On Thursday, he was sentenced to two years in prison—which immediately disqualifies him from holding a seat in Parliament as per a 2013 Supreme Court ruling. He is also barred from contesting an election for eight years.
The fallout: The Lok Sabha secretariat moved with dizzying speed on Friday to issue a notice disqualifying Gandhi. The court has given him 30 days to appeal the conviction—first at a sessions court and then the Gujarat High Court. Simply securing a suspension of the sentence—until his appeal is heard—will not be enough to overturn his disqualification. Everyone is waiting to see if the Election Commission will announce bypolls for his seat—Wayanad, Kerala—which is the next step.
Gandhi’s response: Ever since the verdict was announced, he has been channelling the other Gandhi. In his first tweet, he declared, “My religion is based on truth and non-violence. Truth is my God, non-violence the means to get it.” The Congress also started a day-long ‘Sankalp Satyagraha’ at Bapu-ji’s memorial in Rajghat—and in front of his statues across the country. Gandhi held a press conference where he came out fighting. He took a crack at Veer Savarkar—who is greatly revered by the Hindu right (to understand the jibe, see Savarkar’s record vis-a-vis the British):
Point to note: Maharashtra CM Eknath Shinde now wants to charge him with defamation for that remark, as well. And he seems to have made Shiv Sena ally Uddhav Thackeray unhappy too. He also annoyed the Mumbai Press Club by calling one of the journalists a BJP lackey.
Lost in all these theatrics: any discussion of Gandhi’s actual crime—i.e criminal defamation.
The definition of defamation
Double jeopardy: In India, we have both civil and criminal defamation. A guilty verdict in a civil offence only results in the award of financial damages—and there is no prison sentence involved. A criminal defamation charge, however, could result in both a fine and up to two years in jail. This double whammy for the same offence dates back to English law:
Defamation as a civil offence was meant to compensate a person for the loss that he might have suffered due to his damaged reputation in his community. Defamation as a crime, on the other hand, was closely linked to the propensity of defamatory statements to cause a breach of the peace, or of public order. Notably, it was not necessary to demonstrate that a particular statement had indeed caused a breach of the peace, or led to violence. If, in the opinion of the Court, it had a general tendency towards threatening public order, that was enough to impose criminal penalties.
In 2009, the UK scrapped the draconian criminal defamation law from its books. But its colonial cousin introduced by the Brits in India remains in effect to this day.
What the law says: Section 499 of the Indian Penal Code defines criminal defamation so:
Whoever, by words either spoken or intended to be read, or by signs or by visible, representations makes or publishes any imputation concerning any other person intending to harm, or knowing or having reasons to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Section 499 also lists ten exceptions to the law of defamation. The key bit: a comment is protected as free speech if it is both factually accurate and serves the “public good.”
Question: Was there intent to insult?
According to the law, intent is key. The person is guilty of defamation when they knowingly say something in order to cause harm to a person’s reputation. Did Rahul Gandhi intend to cause harm to the complainant—who is not Narendra, Nirav or Lalit Modi—but BJP MLA Purnesh Modi? Purnesh claims to have suffered an “irreparable loss to his personal and social reputation.”
Gandhi’s lawyer Abhishek Manu Singhvi further insists:
The very content of the speech (against price rise and unemployment) shows that there could not have been any malicious intent. A leader of a political party of India with a pan-India footprint was speaking about unemployment, price rise in the course of which there is a sentence found to be offending. The focus and intent of the speech weren’t these three persons. The thrust and substance at the core of the speech was not these three persons.
Here’s a clip that gives you a sense of the broader context for his remarks:
Question: Modi, the person, or Modis, the group?
A person can defame either an individual or an entire group. But the law demands that this “collection” be clearly identifiable:
When defamation is alleged against a class of persons, such class must be a well-defined class and not an indeterminate and indefinite body (such as Marxists or Leftists). For instance, the Rashtriya Swayamsevak Sangh (RSS) is a definite and identifiable class or body.
For example, 23 criminal complaints were filed against actress Khushboo for advocating greater acceptance of premarital sex. Some of them were filed by women who claimed that her remarks implied all women in Tamil Nadu had lost their virginity before marriage—a charge that was later dismissed by the Supreme Court.
The M-sized question: Are all people with the last name ‘Modi’ such a well-defined group? The judge certainly thought so:
Rahul could have limited his speech to Prime Minister Narendra Modi, Nirav Modi, Vijay Mallya, Mehul Choksi and Anil Ambani, but he “intentionally” made a statement that hurt individuals carrying the Modi surname, thereby committing criminal defamation, the court said.
However, according to LiveLaw:
Those with the surname, Modi, - who allegedly suffered an injury to their reputation as a result of Rahul Gandhi’s remark - cannot constitute a readily identifiable group of people. Rahul Gandhi’s remark was not directed at the complainant in this case; therefore, he could not be described as the “person aggrieved.”
Also this: Did Rahul say that other thieves named Modi will “come out” in the future? Or did he mean that everyone named Modi is a thief? As one legal expert explains: “Even if he said all thieves are Modis, it cannot be interpreted as all Modis are thieves.”
Why this matters: In the Khushboo case, the Supreme Court made it clear that if the complaint was not filed by an “aggrieved person”, then the conviction is “void and illegal.” According to legal experts, it is hard to connect Gandhi’s general remarks about crooks named Modi to any specific harm done to Purnesh: “For instance, if someone says that all journalists are questionable, that does not mean that any journalist can bring a claim for defamation.” If the court dismisses Purnesh’s standing as a complainant, then Gandhi can walk right back into Parliament.
Rahul Gandhi’s real problem: the RSS
While the Purnesh Modi case may be weak, there are more than 10 other criminal defamation cases filed against Gandhi. A number of them involve far more dangerous fodder aimed at the RSS, Amit Shah and Narendra Modi:
- 2014: "RSS people killed Gandhiji.”
- 2017: On the killing of independent journalist Gauri Lankesh: "Anybody who speaks against the ideology of the BJP, against the ideology of RSS is pressured, beaten, attacked and even killed."
- 2018: He calls Narendra Modi “commander-in-thief.”
- 2019: "Murder accused BJP Chief Amit Shah, wah, kya shaan hai..."
- Also in the same year: "Congress BJP ki tarah hatyare ko party adhyaksh ke roop me sweekar nhi kar sakti." (Congress cannot accept a murderer as its party president unlike the BJP)
The RSS threat: In the case of statements against Modi and Shah, the complaint has not been filed by the “aggrieved party”—and are not likely to go far. But remarks linking the RSS to Gandhi-ji’s assassination have already landed Gandhi in hot water with the Supreme Court.
In 2016, the Court plainly said that he cannot issue a "collective denunciation" of an entire organisation—just because Nathuram Godse happened to be an RSS worker. Gandhi was told to express regret or prepare to be tried for defamation. Gandhi’s dramatic response: “I stand by each and every word. I will never take my words back. I stood by it yesterday, I stand by it today and I will stand by it in future. I am ready to go to trial."
Why this matters: The Modi remark may have been flippant but the stakes may be far higher in the RSS case:
If the court acquits Rahul Gandhi of the defamation charges, his stand against the RSS will be vindicated and he will have a lot of ammunition to fire at the BJP in his speeches in future. If he is held guilty, it will be seen as an exoneration of the RSS.
But, but, but: No one paid attention to the Purnesh Modi case until the shocking ruling. However, the next criminal defamation trial of Gandhi will spark a media frenzy. It’s hard to imagine the RSS will want to deal with front page stories raking up its role in the Gandhi-ji’s death.
The bottomline: It doesn’t take a rocket scientist to see the problem with criminal defamation laws. However, the Supreme Court has strongly rebuffed every free speech challenge—and even raised the right to reputation to a fundamental right in 2016:
[The Court] held that society is a collection of individuals, and what affects individuals also affects the society as a whole. Hence, it held that it is valid to treat defamation as a public wrong. It held that criminal defamation is not a disproportionate restriction on free speech, because protection of reputation is a fundamental right as well as a human right.
Is it? We wonder then why over 30 countries have scrapped this “fundamental right.”
LiveLaw explains why Gandhi’s remarks do not fulfil the criteria for criminal defamation. The Print lays out the Congress’ legal argument. Scroll talked to legal experts who are sceptical about the ruling. This older Gautam Bhatia column in Outlook is excellent in explaining why criminal defamation laws must go. Bar & Bench helpfully lists all the defamation cases against Gandhi—while Economic Times focuses on the most dangerous one involving the RSS. NewsLaundry looks at how the law has been used to gag the media.