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Tuesday, December 5, 2023

Conundrum around Disqualification on the Ground of Criminal Defamation

Recently, a criminal defamation case was initiated against Mr. Rahul Gandhi for his remark that “all thieves have Modi surname” under sections 499 and 500 of the Indian Penal Code. It was alleged that Mr Gandhi by making such remarks has defamed the entire Modi community. The Court of Chief Judicial Magistrate of Surat convicted him for the same in a criminal defamation case awarding him two-year jail term which is the maximum sentence prescribed under the Sections he had been charged with.

While pronouncing the sentence court stated that a “reduced sentence will send a wrong message to the public and the purpose of defamation will not be achieved.” The court suspended the sentence for 30 days so that Mr Gandhi can appeal in a higher court. His conviction has disqualified him from his position as a Member of Parliament in accordance with Article 102(1)(e) of the Constitution read with Section 8(3) of the Representation of People Act, 1951.

Chilling Effect on Freedom of Speech and Expression

These circumstances have again raised the age-old debate that whether the law of defamation, being the archaic colonial inheritance, has a chilling effect on freedom of speech expression under Article 19 (1)(a) of the Constitution. First, one needs to look at the law related to defamation. Defamation in India can be divided into two types – Civil defamation and Criminal defamation. For defamation under tort, the general rule is that the focus is on libel and not on slander. However, in this case, the charges are of criminal defamation, the definition of which is provided under section 499 of the Indian Penal Code.

Misuse of Defamation Law for Political Gains

By the virtue of this provision, defamation can be committed through words (spoken or written), signs or visible representations, imputing any person with the knowledge and intention of causing such harm. The question however is whether such a provision is still needed in independent India. The provision which was used against the dissenting voices of the freedom struggle is now being used against the dissent of the opposition keeping a check on what can and cannot be said against the ruling government at the centre.  One can also not ignore the fact that the said remarks were made while addressing a rally in 2019, this case has been initiated with the 2024 elections fast approaching.

Flaws in Disqualification Rules for Convicted Lawmakers

In the landmark judgment of Lily Thomas v. Union of India [(2000) 6 SCC 224], the Supreme Court had clearly spelt out that a lawmaker stands immediately disqualified on attracting a sentence of two years or more unless the conviction is stayed by a higher court. However, there is an apparent flaw in this much-celebrated judgment which is related to the issue that whether a such conviction would have a retrospective effect or a prospective effect vis-a-vis disqualification from the membership of the parliament.

Retrospective or Prospective Disqualification: Legal Fiction

If we say that such a disqualification is prospective, then the accused legislator would lose his membership even after being acquitted, and such a practice would be used as a tool in the hands of the ruling government. However, if the same is being taken as retrospective in nature, then what if the seat of the disqualified legislature is occupied by another duly elected candidate? Then after the acquittal of the earlier, how can there be two candidates for a single seat? Such an event provides a legal fiction which must be taken into note by the honourable Supreme Court of this country.

Another issue which arises here is whether the disqualification in terms of section 8(3) of the Representation of People Act, 1951 is immediate. This was answered in the Lily Thomas case (supra) where the court had struck down Section 8(4) of the Representation of the People Act as “unconstitutional” that provided a three-month window to file an appeal and continue as a lawmaker until the case is disposed of.

In Lok Prahari v Election Commission of India [(2018) 18 SCC 114], the Supreme Court held that once a conviction has stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect. But when the disqualification under other clauses i.e. (a), (b), (c) and (d) of Article 102 are not immediate, then why does disqualification under clause (e) which talks about any law made by the Parliament to be made immediately. Also, such disqualification should comply with Article 103 under which the question of disqualification shall be referred to the president and his decision would be final. Such issues are again in need of clarification by the apex court.

When as a country we are progressing and shedding away our colonial mindset to something which is truly Indian in its working and slowly moving towards reformative justice, does making defamation a criminal wrong and penalising dissent a way forward?

(Agraza is LLM Student from Indian Law Institute, New Delhi. Views are personal)

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