Parsa Venkateshwar Rao Jr | Complications in defamation law exposed

The two sections of the Indian Penal Code -- IPC 499 and 500 -- of 1860 vintage, dealing with defamation and punishment for defamation are nuanced and complicated, and it would seem that Surat judicial magistrate H.H. Varma read them narrowly enough to convict Congress leader Rahul Gandhi for his 2019 campaign speech with its reference to the surname “Modi”. Rahul Gandhi has rarely been cautious or discreet in his statements, and it has almost become his signature. So when he spelt out the names of Lalit Modi and Nirav Modi -- the two are fugitives and accused of economic offences -- along with Prime Minister Narendra Modi, Mr Gandhi was making the connection between the Rafale deal and Prime Minister Modi. On the face of it, it might appear that it was the kind of off-the-cuff remark that Rahul Gandhi could have avoided, but he wanted to drive home the point that the government of Prime Minister Modi was patronising corrupt business people, facilitating their escape from the country, and that the Prime Minister was involved in a questionable deal where he was accused of favouring businessman Anil Ambani.

The law is indeed about splitting hairs. The question that Judge Varma had to decide was whether Rahul Gandhi implied that all people with the surname of “Modi” were economic offenders. One way of clarifying the issue was to press Rahul Gandhi whether he thought all people with the surname of “Modi” are guilty. The plain answer would have been that he did not mean all the Modis, but only the individuals he had referred to. And Rahul could have easily said that it was not his intention to make an accusation against all the Modis. The charge against Rahul was indeed maintainable, but it had to be proved. The proof was not a simple matter of deduction.

Section 499 IPC defines defamation as “any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm…” -- and it is no simple definition either because there are four explanations and 10 exceptions, and some of these exceptions have their own explanations. One of the explanations is that an imputation can be about a group of people as well as an individual. The explanation says: “It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.” Rahul Gandhi has been found guilty of this -- imputing a collection of persons. It cannot be a simple matter as to what this “collection of persons as such” may be.

Chief Justice Dipak Misra in his judgment on the issue of defamation in Subramanian Swamy vs Union of India, delivered on May 13, 2016, did indeed raise a question about this explanation. He said: “The words like ‘company’, ‘association’ or ‘group of persons as such’, as used in Explanation 2, should exclude each other because different words used in the section must be given different meanings and it is appropriate that they are not given meanings by which an indefinite multitude can launch criminal cases in the name of class action or common right to reputation.” The First Exception to 499 says: “Imputation of truth which public good requires to be made or published – It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be or published. Whether or not it is for the public good is a question of fact.” So, here is the law in all its complications.

There is the larger question whether defamation should be linked to the reasonable restrictions of Article 19 (2) on freedom of speech enshrined in Article 19 (1) (a). In the Subramaniam Swamy case, Chief Justice Misra recorded the views of senior lawyers of the Supreme Court like P.P. Rao, Rajeev Dhawan, Arvind Datar and Sanjay Hegde, who argued that IPC 499 is an unreasonable impediment to freedom of speech. Mr Misra recorded the view of Mr Rao and Mahalakshmi Pavani as saying: “…Article 19 (2) cannot be regarded as the source of authority for Section 499 of IPC which makes defamation of any person an offence… It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple, for which the common law remedy is an action for damages.” The case for defamation as something linked to Article 19 (2) -- reasonable restriction on freedom of speech -- was made by then attorney-general Mukul Rohatgi, then additional solicitor-general P.S. Narasimha (now a Supreme Court judge) and Abhishek “Manu” Singhvi. Chief Justice Mishra, along with Justice Prafulla C. Pant, upheld the law on defamation as it stood.

It is unlikely that the conviction of Rahul Gandhi will reopen the legal debate now because it is the political consequences of the judgment that are of consequence, as it has already been shown when the Lok Sabha promptly disqualified Mr Gandhi based on the law that a member convicted of a crime cannot remain a member of the House. It is the legal strength or weakness of the Surat judgment that will decide whether Mr Gandhi will serve the two-year jail term, which means that he will not be able to contest the 2024 Lok Sabha election, and possibly 2029 too, nor will he be able to be the chief campaigner of the Congress because the BJP will use it to attack the Congress even more aggressively.