The Gujarat high court on Tuesday refused to grant interim relief to Congress leader Rahul Gandhi on his plea for stay of conviction in a 2019 criminal defamation case over his "Modi surname" remark, saying no protection can be granted to him at this stage and it will pass a final order post-summer vacation which ends in early June.
Counsel for Gandhi (52), Abhishek Manu Singhvi, cited "extreme urgency" to request the HC for interim relief or a final order and during final submissions maintained there was hardly any instance in criminal defamation where an accused was sentenced to more than 3 to 6 months in jail, and that his client was a first-time offender.
The complainant's lawyer opposed Singhvi's prayer for interim relief to Gandhi, sentenced to two years in jail by the trial court in Surat, and said if the disqualified MP cannot apologise for his defamatory utterances, then he should also not approach the HC for stay of conviction.
After final arguments from both sides concluded during the day, the court of Justice Hemant Prachchhak said no interim protection can be granted to the applicant at this stage in the defamation case stemming from his "Modi surname" remark made four years ago.
The former Congress president had prayed in the HC for stay of conviction, which if granted, will pave the way for his reinstatement as a Member of Parliament.
Justice Prachchhak said he will pass a final order only after going through the records and proceedings, and posted the matter for verdict after reopening of the HC post- summer vacation, which will be from May 8 to June 3.
Advocate Nirupam Nanavati, who appeared for Gujarat Bharatiya Janata Party (BJP) MLA Purnesh Modi, the original complainant in the case, opposed Singhvi's prayer for interim relief to the Opposition politician who was elected to the Lok Sabha from Wayanad in Kerala in 2019.
Being a leader of a national political party, which has ruled the country for over 40 years, Gandhi must "learn a lesson" that using abusive language for his political opponents cannot be tolerated, the counsel for Purnesh Modi said.
If Gandhi cannot apologise for his defamatory utterances, then he should also not approach the court with prayer for relief for stay of conviction, Nanavati said.
Nanavati said even after the pronouncement of conviction and his subsequent disqualification as an MP, Gandhi continued to stand by his statement and refused to apologise, and cited a newspaper report in which the Congress leader had said he will not apologise as he is a "Gandhi and not Veer Savarkar”.
"His public stand, and his stand in the courtroom are different. If this is your public stand, then whatever the matter -- disqualification, sentence or conviction -- you motor mouth and speak whatever, then don't come (to the court) with a prayer. You are well within your right not to apologise, nobody will compel you to apologise," he said.
"Either you stick to your stand -- which is your public stand -- or say that I spoke but I never meant that, I never intended that, never wanted to defame anyone," Nanavati said.
Nanavati said Gandhi neither apologised before the commencement of the trial in Surat nor said sorry or expressed regret and offered no explanation even during hearing on sentencing.
"Coincidentally, the surname of the Prime Minister of the country is also Modi. What message are you giving by this utterance to the world -- that an Opposition leader of India brands the PM as a thief in a public rally attended by thousands of people? Is this the language?" he asked during his submission.
Nanavati said Gandhi is facing 12 criminal defamation cases for his remarks in different courts across the country.
He said it is Parliament which made the law regarding disqualification of an MP.
"Parliament says it (his crime) is serious, and it involves moral turpitude. And the application of such an offender cannot be considered for stay of conviction," he said.
Nanavati said, "Seriousness of offence is considered by Parliament (for disqualification). Disqualification is because of the operation of law and not judgment. The court's function has ended but it is a law enacted by Parliament which deals with disqualification."
In his final arguments, Gandhi's lawyer Singhvi said per se, the category for defamation makes it the simplest offence, and CrPC section 389 (for stay of conviction) will not find "a simpler conviction to suspend than defamation which is non-cognizable, which is simple imprisonment, bailable and not anti-society."
"If there is a classic offence which is the mildest form of offence which must lead to section 389 suspension then it is this," said the senior counsel.
Singhvi said a parliamentarian has a greater "irreversible prejudice" than a non-MP convict, because the former happens to lose his seat due to two-year imprisonment, "and that is a point in my favour and not against me for relief under section 389 (of CrPC)."
"It is wrong to think that the moment you are convicted, Parliament becomes a barred area for you. Under a controlled condition, you are entitled to be in Parliament, and that controlled condition now is suspension," Singhvi said.
As far as the original complainant, a former Gujarat minister, is concerned, he was offended by a remark in which he was not mentioned, he said and added politicians must develop a thicker skin.
"Thick skin is a great attribute and a great virtue in public life...This whole approach that he being an ex-minister involved in public life should be more protected, just the opposite is true. As they say, if you go into public life, you are submitting yourself to the brickbats of public life and be more thick skinned," Singhvi said.
He said there was hardly any instance in criminal defamation where an accused was convicted, and none sentenced to more than 3-6 months in jail.
"To say that maximum punishment is desirable -- what is it desirable for? He (Gandhi) is a first-time offender, how is maximum punishment desirable to him? And how many defamation cases have you found where two years (sentence) is imposed?" Singhvi asked.
The HC heard Gandhi's appeal against the Surat sessions court's order last month refusing to stay his conviction in the case after the trial court on March 23 sentenced him to two years in jail under IPC sections 499 and 500 (criminal defamation), leading to his disqualification as an MP.
BJP MLA Modi had filed a criminal defamation case against Gandhi over his "How come all thieves have Modi as the common surname?' remark made during an election rally at Kolar in Karnataka on April 13, 2019.
