A striking feature of the Surat district court’s order declining to stay the conviction of Congress leader Rahul Gandhi is its unusual emphasis on his status as a Member of Parliament to justify his conviction and quantum of punishment. It is quite evident from a reading of 8th Additional Sessions Judge Robin P. Mogera’s order that the court deems an offence to be worse if done by a legislator, that its impact on society is more deleterious than when it is committed by any other citizen, and that a harsher sentence than normally imposed is justified against a lawmaker. Yet, Mr. Gandhi’s status as a parliamentarian matters little when it comes to the question whether his conviction ought to be stayed. His two-year prison term, awarded by a magistrate court in Surat for allegedly defaming the collective of people who have ‘Modi’ as their surname, has led to his disqualification from his membership of the Lok Sabha. While his sentence has been suspended till disposal of his appeal against his conviction, only a stay on the operation of his conviction could have restored his membership of the House. Judge Mogera has ruled that Mr. Gandhi failed to demonstrate that he will suffer irreversible and irrevocable damage if his conviction, which has also deprived him of the opportunity to contest elections, is not stayed. Selectively quoting from Supreme Court judgments, the judge has held that disqualification for being a legislator cannot be described as irreversible damage.
The order suffers from infirmities in reasoning and does not always adhere to precedents that do not prohibit treating disqualification from electoral contest as an exceptional circumstance warranting stay of conviction. The order holds that the complainant, being a former Minister, would have suffered harm to his reputation by Mr. Gandhi’s remark. However, it fails to see that a conviction for defamation is itself quite rare, and a two-year punishment rarer. The judge justifies the maximum sentence by claiming that the words of a sitting Member of Parliament will have a larger impact on the public and that the sentence is “permissible in law”. Criminal defamation is itself a questionable concept, as it can be invoked to silence criticism and harass opponents. It is inconceivable that political remarks made in an election campaign are used to secure a conviction for defamation and a jail term that precisely matches with the legal requirement to disqualify a person. Mr. Gandhi has further legal remedies, such as an appeal in the High Court, but it is lamentable that in a democracy, a dodgy defamation case can be stretched to such absurd levels as to deprive the parliamentary opposition of a key figure.
