When a British parliamentarian told former UK Prime Minister Benjamin Disraeli: “Sir, you will either die on the gallows or of some unspeakable disease,” the latter is supposed to have quipped:
“That depends, sir, upon whether I embrace your principles or your mistress.”
Recounting this exchange, Senior Advocate Sanjay Hegde told The Quint:
“That is the extent of free speech that is allowed and celebrated in the mother of parliaments."
Hegde’s remark gathers pertinence in the aftermath of a recent Gujarat High Court order upholding Congress leader Rahul Gandhi’s conviction in a criminal defamation case. This conviction incidentally cost Gandhi his seat in the parliament.
“It is a rare case where for a political speech made in Karnataka, a North Indian MP from Kerala is disqualified by a court in Gujarat,” Hegde added.
Also read why Rahul Gandhi’s conviction has been concerning to begin with, and why it led to his disqualification as an MP.
Rahul Gandhi Conviction & Democracy: Why HC Order Raises Free Speech Concerns
1. Gujarat High Court's View
Gujarat High Court’s Justice Hemant Prachchhak, in his order, opined:
"In anyway, the conviction would not result in any injustice to the applicant.”
His grounds for upholding the conviction included:Rahul Gandhi’s political position and public prominence
The nature of defamation: “an offence of public character wherein the fundamental right to reputation and dignity is involved”
As many as ten criminal cases are pending against Gandhi, including one by the grandson of Vinayak Savarkar and that “it is now need of the hour to have purity in politics”.
Expand2. Experts Flag Concerns...
Legal experts, have however questioned both the court’s conclusion as well as the grounds involved in arriving at it.
“The stay of convictions should have been approached bearing in mind the consequence of disqualification,” Hegde said.
“They have to either await a by-election or a higher court suspending the sentence and therefore holding in abeyance the disqualification.”
Noting that the Gujarat court had suspended Rahul Gandhi’s sentence during the pendency of his appeal, Advocate Anuj Prakash further said:
“I feel suspension of conviction is to be read into suspension of sentence. A punishment (sentence or fine) is the obvious repercussion of conviction. So, if the sentence or fine is stayed, effectively, the effect of the conviction is stayed.”
Thus, he added: "Suspension of conviction (as separate from suspension of sentence) is superfluous."
Meanwhile Advocate Shahrukh Alam told The Quint:"The narrative framing of the order is not just a one off thing. It is a continuation of the way in which both the state, and in some cases the court, has been framing the issue of what is fair practice in democratic politics and what is not.”
Expand3. What Do You Do in a Democracy?
Recounting Gandhi’s political standing — ex-MP, president of the second largest party et al — the order also says:
“It appears that the accused suggested the name of the Hon’ble Prime Minister to add sensation, apparently and for an intention to affect the result of the election of the candidate of concerned constituency belonging to the political party of the Hon’ble Prime Minister and then the accused did not stop there but imputed that “saare choro ke naam modi hi kyu hai” . Thus, the present case would certainly fall within the category of seriousness of the offence.”
Advocate Anuj Prakash, however, pointed out the fact that the offence is triable by a magistrate, and bailable. Thus, he said, this goes to show that it is NOT a serious offence.Advocate Alam, on her part, added:
"In a democracy how else do you dislodge a government in a non-violent manner, if not by invoking what you feel is wrong with the government or the people who run the government?"
She also pointed out that this is precisely what the state, the prosecution and in some cases the courts have been doing in several recent cases.
"You are redefining the limits of political participation,” Alam added.
Expand4. The Ten Pending Cases
The Gujarat High Court, in its order, further said: "as many as ten criminal cases are pending against the applicant."
Experts however have questioned the relevance of this consideration, given that the law presumes innocence until an accused person's guilt has been established in a court of law.
As per Senior Advocate Hegde:
“Judges are entitled to consider a criminal’s record of convictions. But here all these cases appear to have been complaints, none of which have reached a conclusion.”
Lamenting the fact that "a sitting representative of a constituency was disqualified due to conviction and sentencing under an obsolete colonial era law is in itself an alarming development symptomatic of legal malice," Advocate Harshit Anand added:
"The High Court took a very puritanical view by taking into account Gandhi’s criminal antecedent, when the law did not require it to do so."
According to Advocate Alam this observation should have instead worked in Gandhi's favour.
“If there are 10 cases against him, it should also show that there is a strategy to attack him for speech offences. This should have gone in his favour rather than against him.”
Advocate Shahrukh AlamThe court's reference to the complaint over the Vir Savarkar-remark also struck her as very odd:
"So the court has assumed that Vir Savarkar is a holy cow and nothing can be said about him?"
Expand5. Inverting a Progressive Jurisprudence?
Further, experts have noted that the language of hate speech jurisprudence, which is centred around marginalisation and discrimination, has been applied to hurt sentiments in this case.
"Hate is not a "speech problem" but rather a problem of marginalisation and discrimination," Advocate Alam explained. "It has to do with structural violence, not with hurting of sentiments."
So what is 'hurting of sentiments'?
"Hurting of sentiments is a very different kind of problem. It is a speech problem and it is also between two parties which are presumed to be equals. It also suggests an equality of social, political status, such that one party is able to react and say that 'I am hurt, stop doing this and there may be a law and order problem.'"
However?
"However, when the social hierarchies are so different that you can go on saying things about one community (such as references to all Muslims being terrorists, or all beneficiaries of reservations being lazy) with relative impunity, and they are not even socially, politically and legally able to respond -- then that’s a problem of discrimination."
So what has happened here?
"This order takes the jurisprudence around understanding hate speech as a problem of marginalisation and discrimination and transplants it to this problem of hurt sentiments, which is a completely different order of things."
Expand6. Why There Has to Be Latitude in Political Speech...
As we have noted previously, perhaps the need of the hour is to look beyond who Rahul Gandhi is and at what his offence really was. You know, the same standards that are applied when convicting and sentencing most other people.
Besides, political banter is often swathed in mockery, farce, teasing and taunts. It is a part and parcel of the electoral process. While someone is a Pappu, another is called Feku, and the cycle continues. But none of the above make one a criminal.
In Ramesh vs Union of India, the apex court had held: "(An) alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”
And as noted by Sanjay Hegde:
“There has to be a latitude in political speeches otherwise the message that we are getting from the judgments of the Gujarat courts is that Nirav Modi and Lalit Modi are very honourable men and anything said against them would amount to defamation of Mr Purnesh Modi.”
"And in any case, you can’t question the Prime Minister apparently," Advocate Alam pointed out.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
Gujarat High Court's View
Gujarat High Court’s Justice Hemant Prachchhak, in his order, opined:
"In anyway, the conviction would not result in any injustice to the applicant.”
His grounds for upholding the conviction included:
Rahul Gandhi’s political position and public prominence
The nature of defamation: “an offence of public character wherein the fundamental right to reputation and dignity is involved”
As many as ten criminal cases are pending against Gandhi, including one by the grandson of Vinayak Savarkar and that “it is now need of the hour to have purity in politics”.
Experts Flag Concerns...
Legal experts, have however questioned both the court’s conclusion as well as the grounds involved in arriving at it.
“The stay of convictions should have been approached bearing in mind the consequence of disqualification,” Hegde said.
“They have to either await a by-election or a higher court suspending the sentence and therefore holding in abeyance the disqualification.”
Noting that the Gujarat court had suspended Rahul Gandhi’s sentence during the pendency of his appeal, Advocate Anuj Prakash further said:
“I feel suspension of conviction is to be read into suspension of sentence. A punishment (sentence or fine) is the obvious repercussion of conviction. So, if the sentence or fine is stayed, effectively, the effect of the conviction is stayed.”
Thus, he added: "Suspension of conviction (as separate from suspension of sentence) is superfluous."
Meanwhile Advocate Shahrukh Alam told The Quint:
"The narrative framing of the order is not just a one off thing. It is a continuation of the way in which both the state, and in some cases the court, has been framing the issue of what is fair practice in democratic politics and what is not.”
What Do You Do in a Democracy?
Recounting Gandhi’s political standing — ex-MP, president of the second largest party et al — the order also says:
“It appears that the accused suggested the name of the Hon’ble Prime Minister to add sensation, apparently and for an intention to affect the result of the election of the candidate of concerned constituency belonging to the political party of the Hon’ble Prime Minister and then the accused did not stop there but imputed that “saare choro ke naam modi hi kyu hai” . Thus, the present case would certainly fall within the category of seriousness of the offence.”
Advocate Anuj Prakash, however, pointed out the fact that the offence is triable by a magistrate, and bailable. Thus, he said, this goes to show that it is NOT a serious offence.
Advocate Alam, on her part, added:
"In a democracy how else do you dislodge a government in a non-violent manner, if not by invoking what you feel is wrong with the government or the people who run the government?"
She also pointed out that this is precisely what the state, the prosecution and in some cases the courts have been doing in several recent cases.
"You are redefining the limits of political participation,” Alam added.
The Ten Pending Cases
The Gujarat High Court, in its order, further said: "as many as ten criminal cases are pending against the applicant."
Experts however have questioned the relevance of this consideration, given that the law presumes innocence until an accused person's guilt has been established in a court of law.
As per Senior Advocate Hegde:
“Judges are entitled to consider a criminal’s record of convictions. But here all these cases appear to have been complaints, none of which have reached a conclusion.”
Lamenting the fact that "a sitting representative of a constituency was disqualified due to conviction and sentencing under an obsolete colonial era law is in itself an alarming development symptomatic of legal malice," Advocate Harshit Anand added:
"The High Court took a very puritanical view by taking into account Gandhi’s criminal antecedent, when the law did not require it to do so."
According to Advocate Alam this observation should have instead worked in Gandhi's favour.
“If there are 10 cases against him, it should also show that there is a strategy to attack him for speech offences. This should have gone in his favour rather than against him.”Advocate Shahrukh Alam
The court's reference to the complaint over the Vir Savarkar-remark also struck her as very odd:
"So the court has assumed that Vir Savarkar is a holy cow and nothing can be said about him?"
Inverting a Progressive Jurisprudence?
Further, experts have noted that the language of hate speech jurisprudence, which is centred around marginalisation and discrimination, has been applied to hurt sentiments in this case.
"Hate is not a "speech problem" but rather a problem of marginalisation and discrimination," Advocate Alam explained. "It has to do with structural violence, not with hurting of sentiments."
So what is 'hurting of sentiments'?
"Hurting of sentiments is a very different kind of problem. It is a speech problem and it is also between two parties which are presumed to be equals. It also suggests an equality of social, political status, such that one party is able to react and say that 'I am hurt, stop doing this and there may be a law and order problem.'"
However?
"However, when the social hierarchies are so different that you can go on saying things about one community (such as references to all Muslims being terrorists, or all beneficiaries of reservations being lazy) with relative impunity, and they are not even socially, politically and legally able to respond -- then that’s a problem of discrimination."
So what has happened here?
"This order takes the jurisprudence around understanding hate speech as a problem of marginalisation and discrimination and transplants it to this problem of hurt sentiments, which is a completely different order of things."
Why There Has to Be Latitude in Political Speech...
As we have noted previously, perhaps the need of the hour is to look beyond who Rahul Gandhi is and at what his offence really was. You know, the same standards that are applied when convicting and sentencing most other people.
Besides, political banter is often swathed in mockery, farce, teasing and taunts. It is a part and parcel of the electoral process. While someone is a Pappu, another is called Feku, and the cycle continues. But none of the above make one a criminal.
In Ramesh vs Union of India, the apex court had held: "(An) alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”
And as noted by Sanjay Hegde:
“There has to be a latitude in political speeches otherwise the message that we are getting from the judgments of the Gujarat courts is that Nirav Modi and Lalit Modi are very honourable men and anything said against them would amount to defamation of Mr Purnesh Modi.”
"And in any case, you can’t question the Prime Minister apparently," Advocate Alam pointed out.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)