Mumbai: Rahul Gandhi’s disqualification from the Lok Sabha has created a sensation. It was a fallout of his conviction in a defamation case in a Surat court. The charges against Gandhi were defended by local lawyer Kirit Panwala.
Panwala is a senior lawyer with 47 years of legal practice. In a telephonic interview, he explains the details of the case to ThePrint and why he thinks the line “all thieves have the common surname Modi” doesn’t deserve a harsh punishment.
Kiritbhai, it has turned out to be an historical case. Were any of your arguments weak that they led to this judgment?
I don’t believe that any argument was weak; the arguments were extremely clear and the counter-examination was also conducted aptly.
Moreover, the factual aspects of the case are not strong enough to invite deep thought. At the election rally, certain accusations were made against Narendra Modi and a sentence was casually spoken in the end i.e., – “Nirav Modi, Lalit Modi, Narendra Modi … how come all thieves have the common surname (of) Modi?”
Actually, 90 per cent of the allegations made in this ‘defamatory’ comment are against Narendra Modi and the law dictates that if the allegations are against an individual, that person should file a complaint as the aggrieved party. In this particular case, Narendra Modi should be filing a complaint (which he hasn’t) and we have Purnesh Modi filing a case instead! How can he, when the law does not allow him to do so?
Also read: Who are Modis? Community ‘defamed’ by Rahul has nomadic origins, came to Gujarat 600 years ago
Purnesh Modi lodged the complaint because of the line “all thieves have the common surname Modi” . He himself is a Modi.
A sentence of two years’ imprisonment over one line? I have researched many past judgments in similar cases and not a single upper court has sentenced an accused to a two-year imprisonment; they have either been let off with a reprimand or a nominal punishment or a penalty, nothing beyond that.
This particular case doesn’t even justify this because the quoted sentence – “how come all thieves have the common surname Modi” – refers to ‘Modi’; and people are presuming that it refers to the entire Modi community. Whereas actually, there is no reference to the community at all! The community does not come into the picture.
But isn’t (there) the reference to the Modi community?
We have proved that there is no Modi community, per se. We have Modh Vanik, Modh Ghanchi and so on, but no Modi community. And if there is no Modi community, how does the question of raising a complaint as a representative of this so-called community arise?
Secondly, let’s take up their representation on the grounds that Modi was being used as a surname and there are reportedly 13 crore people in India carrying that surname. According to the law, this group is considered as ‘loose and unidentifiable’ and as per norms, one cannot lodge a complaint as a member of an unidentifiable group.
The Supreme Court has passed many such judgments in the past in similar instances. For example, there was a case filed in Gujarat against someone who had termed lawyers as ‘dispute dalals/ brokers’; in response to which the court ruled that the term (dispute broker) was used for lawyers in general and not to any identifiable, definite and determinative group and hence, a case cannot be lodged against the person.
Similarly, there was a complaint filed against filmmaker Raj Kapoor for using a particular term for the scavenger community.The term was used by a Brahmin character in his film Ram Teri Ganga Maili. In that case also, the Supreme Court ruled that the particular term (now made illegal to use) is a loose, unidentifiable group, so the case doesn’t hold ground.
The court had made a similar ruling in a case filed against actress Asha Parekh for allegedly portraying lawyers in a poor light in one of her films.
We can definitely say that there is no ‘maintainability’ in the complaint. Secondly, this line is a stray sentence in the entire speech. There is absolutely no intention to harm or even the knowledge that it will harm anyone.
Gandhi was delivering a speech in Bengaluru where it is highly improbable that anyone with the surname ‘Modi’ was present in the audience; and no one has been able to provide evidence also on these lines.
Their stand is that Modh Vaniks are the Modi community. Gandhi actually meant to say – This Nirav Modi, this Lalit Modi, this Narendra Modi…why is the surname of all THESE thieves Modi? But he made a slip of tongue by missing the word THESE which these people have caught and blown out of proportion.
Also read: Don’t bar Rahul Gandhi from contesting election—or any convicted criminal for that matter
Did you anticipate that this (conviction) would happen?
We have been arguing the maintainability of the case. There was a stay on the case. Later, Judge A.K. Dave was transferred and Judge Harish Verma came in his place. Meanwhile, the stay was withdrawn, the hearing started and the judgment followed.
Do you think the two-year sentence is too harsh?
That is my second point; my first point being that this case itself has no ground. Punishment just cannot be inflicted. Even if the court finds a person guilty, the sentence cannot be so long.
How true is the story doing the rounds that Rahul Gandhi never took this case seriously?
This allegation is entirely baseless. The legal trial has been taken extremely seriously, no leeway was sought.
So are you of the opinion that Gandhi took this case seriously?
Yes, people have a wrong image of him and so does the media. I have found him to be a great democrat. He has never missed a single court hearing. Two of his cases are going on in Ahmedabad; I need to go many times for the hearings and have noted that he comes on time and he respects everyone, including the court. In fact, he is closer to the ideal framework of our country which was drawn by our post-Independence leaders than Narendra Modi is.
Why didn’t he offer an apology?
We tried twice to negotiate some kind of a mutual understanding. But the complainant wasn’t ready. In an SC contempt case, an apology can be offered but the situation is very different in a defamation case in a lower court. We were ready to give in writing that Gandhi respects all communities. But somehow, the complainant was not ready to accept that.
Why were the oral submissions not submitted in written form, like many others do?
Gandhi has made written submissions too. Probably, it wasn’t mentioned separately in the judgment because written submissions fall within the oral submissions segment, per se.
Why did you not take a stay on the very same day that the judgment was passed?
According to Section 8 of the Representation of the People Act, 1951, an MP/MLA convicted of any offence and sentenced to imprisonment for not less than two years is disqualified immediately from the date of conviction.
But the judge had given you time to approach the higher court…
Yes, he granted a period of one month – but this was for appeal for procuring bail. The punishment has been postponed till then. But conviction and punishment are two totally different issues. A stay should be given on the punishment so that there is relief in the disqualification (from Parliament) element; if there is a stay on the conviction, then there is no relief.
Weren’t you aware that if Gandhi being an MP is sentenced to two years’ imprisonment, he will be immediately disqualified from his post?
Of course, we knew this and we had also discussed (this) among ourselves in detail. But what precautionary steps could we have taken? Could we presume that ‘this person is going to be sentenced so let us take steps in advance’ — the law doesn’t allow this! And such steps are akin to defamation or contempt of court.
In fact, the Lok Sabha administration declared it the next day, but the disqualification took place the day of the judgment itself. Even if they declare this after five days, disqualification comes into effect the moment a lawmaker is convicted.
Also read: ‘Calls entire community thieves’ — how BJP’s using Rahul case to step up OBC outreach
What next?
After reading this judgment and drawing relevant points, we will appeal in the sessions court for suspending punishment and also the conviction. We will appeal under Section 374/3 of the IPC. Within this appeal, we will apply for a stay on the punishment. We will seek suspension of the two-year punishment along with bail, and will try to procure orders on these lines. If we get the order, we can file an appeal. The result could be imprisonment or release.
Is the BJP losing ground as Gandhi is gaining public sympathy because of the verdict…what are your thoughts on this?
Public sympathy is an offshoot of the entire proceedings. They had never in their wildest dreams imagined that something like this could also happen! The BJP treats the fourth estate as its property so they never thought that this case would attract so much publicity in the media and sympathy from the general populace. Apparently, the mindset of the public has changed slightly.
In the scenario of Gandhi not getting a stay, will he have to go to jail immediately?
Yes, and he has openly said, “I am prepared to go to jail.” Their intentions also are to imprison him. Else, even a layperson with basic common sense will wonder how a complaint was raised via WhatsApp in Surat against a slip of tongue by someone a thousand kilometres away, in Bengaluru, during an election rally where Modi was not even present. That too, in the context of highlighting issues such as unemployment, inflation and misgovernance.
Legally, an inquiry should be instituted into this complaint. There was an amendment in 2005 that a case cannot be filed against a person staying outside the area of jurisdiction and summons cannot be sent at all. In view of the same, how can someone staying in Surat file a case against Gandhi who is residing in Delhi?
The proper process is instituting an inquiry; but if they follow this procedure, then they cannot reap its benefits for the coming polls. Their strategy of gathering all the Modh Ghanchis and Modh Vaniks under the pretext of the ‘Modi surname’ case would fail.
They served the summons without conducting an inquiry and initiated the case. If you delve deeper, there’s nothing in this case. People will wonder, “ What crime did Rahul Gandhi commit that he was given a two-year sentence?” …If this angle is properly highlighted in the media, everyone will realise that there’s nothing in this case.
Is there any other such case filed in Gujarat?
No, not in Gujarat; but similar cases have been filed against Gandhi in other parts of India.
I mean over this particular reference of ‘Modi’?
Yes, Sushil Modi in Bihar has filed a case. It’s an ongoing case.
Are you a Modh Vanik too?
I am of the same caste as Narendra Modi, I am also a Modh Vanik; we are also known as Modh Ghanchis. I am totally different from the people of my caste who are pro-BJP. I believe in secularism, I believe in democracy and I also believe that in the rule of Narendra Modi, democracy is under threat as we are all under an autocratic rule… and the less said about secularism, the better.
(Edited by Smriti Sinha)