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Legally Explained: Did Rahul Gandhi defame the RSS? Wasn't he told to apologise or something by the SC?

Nathuram Godse's former RSS membership: Potentially criminally defamatory or not?
Nathuram Godse's former RSS membership: Potentially criminally defamatory or not?

We explain what’s going on in the Supreme Court between Rahul Gandhi, the RSS and lots of heavyweight lawyers right now. And wasn’t RaGa already told he should apologise or something?

Why is Rahul Gandhi before the Supreme Court?

The Congress vice-president, Rahul Gandhi, is facing defamation proceedings at a court in Bhiwandi, Maharashtra.

In that case Rajesh Kunte, a Rashtriya Swayamsevak Sangh (RSS) worker, has complained that Rahul Gandhi’s remarks (made during the election campaign in 2014) that RSS people had killed Mahatma Gandhi were defamatory.

Rahul Gandhi wants the Supreme Court’s intervention to quash the proceedings, as the Bombay high court had refused to do so in May 2015.

What exactly did Rahul Gandhi say that was allegedly defamatory?

The exact offending portion, reproduced in the Bombay high court’s 10 March, 2014 judgment, is as follows:

>“We gave the telephone to India. This is their style. Gandhiji was killed by them; persons from the RSS shot Gandhiji. And today, their people talk of Gandhiji.”

Didn’t the apex court on 19 July already tell RaGa to apologise?

Many newspapers had indeed reported that the bench asked Rahul Gandhi either to express regret for his remarks or face trial (e.g., The Times of India headline ’RSS killed Gandhi’: Express regret or face trial, Supreme Court tells Rahul Gandhi).

But several other newspapers surprisingly did not.

Asian Age, for instance, had reported: “The bench told senior counsel Harin Raval, appearing for Rahul Gandhi, as follows: There is a difference between Nathuram Godse killing Mahatma Gandhi and the RSS killing him. You can’t make a collective denunciation of an organisation. It must stand the test of public good. Otherwise, it has to go for trial.”

The question of apology was suggested by the bench during a hearing in 2015, according to Asian Age, with Kunte having expressed his readiness to withdraw the case if Rahul Gandhi expressed regret.

However, legally any expression of regret by Rahul Gandhi would have no consequence, if the complainant refused to withdraw the case.

In any case, Rahul Gandhi’s counsel, Kapil Sibal, had said that Rahul Gandhi would not offer an apology and was ready to argue the matter.

Ok, that’s settled then. So what did the SC say in the case on 26 July?

The bench, comprising of justices Dipak Misra and Rohinton Fali Nariman, observed that the magistrate in Bhiwandi was wrong in asking the police to enquire into the complaint by the RSS worker against Rahul Gandhi.

The magistrate was wrong, according to the bench, because the police has no role in private criminal defamation complaints under section 499 IPC, and it was up to the complainants to prove their allegations.

Therefore, the bench said, it could remand the case back to the magistrate, so that he could take corrective steps and enquire himself whether Rahul Gandhi’s statement was defamatory to the RSS

Why did the bench adjourn the case then?

Both counsel, representing Rahul Gandhi and Kunte, were a little surprised about the bench’s interpretation of Section 499 of the IPC

The bench therefore wanted to give more time to both counsel to advance arguments on the issue.

The court will hear the case again on 23 August.

How did the bench suggest that police cannot enquire into a defamation complaint?

Justice Dipak Misra drew the attention of the counsel to Paragraph 197 of the Supreme Court’s recent judgment in Subramanian Swamy v Union of India, in which it upheld the constitutional validity of the defamation provisions in IPC

This paragraph says that in matters of criminal defamation, the heavy burden is on the magistracy to scrutinise the complaint from all aspects.

Justice Misra had held in that 13 May judgment that a magistrate:

  • must be satisfied that ingredients of Section 199 CrPC (the judgment apparently erroneously mentions it as Section 499 CrPC) are met, and
  • must apply his or her mind to the complaint.

What does Section 199 CrPC say, which is relevant here?

This section explains how a court should take cognisance of an offence of defamation, and start the prosecution of the accused.

This provision does not explain whether a magistrate can ask the police to probe the complaint, which is what is currently at issue before the SC in the RaGa matter.

So how come Justice Misra said that the police has no role in the matter?

It is because in case of criminal defamation, neither can any FIR be filed, nor can any direction be issued under Section 156(3) CrPC

However, it is only under Section 156(3) CrPC that any magistrate may order an investigation by the police into a cognisable complaint.

Justice Dipak Misra had held in the 13 May 2016 judgment that the offence of defamation has its own gravity and therefore the responsibility of the magistrate is greater.

,,"In a way, it [the responsibility, that is] is immense at the time of issue of process,” Misra had held in paragraph 196 of that judgment.

How did the magistrate send the complaint to police for inquiry?

The magistrate did so under Section 202(1) CrPC, which enabled him to postpone the issue of process against the accused, and either:

  • inquire into the case himself, or
  • direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

How did Justice Misra then hold that the magistrate has no power to direct the police to investigate?

It is because Section 202 has a key proviso, which the magistrate may have probably overlooked.

It says that the magistrate shall not direct the police to investigate if:

  • it appears to him that the offence complained of is triable exclusively by the court of Session,
  • where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

Curiously, the magistrate took the statement of Kunte on oath, before sending the complaint to the police for inquiry.

After receipt of the inquiry report, a summons had been issued to Rahul Gandhi.

What is the defence of Rahul Gandhi’s counsel so far?

Rahul Gandhi’s lawyers have told the Supreme Court that he was not referring to the RSS directly.

In the Bombay high court, his lawyers submitted that Rahul Gandhi did not intend to harm the reputation of the RSS

They further said that if any statement is made by the accused in respect of a question within the public domain, it would not amount to defamation, and would be covered by Third Exception of Section 499 of IPC

What does the Third Exception say?

It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

That sounds reasonable. What other exception has Rahul Gandhi claimed before the high court?

He also claimed the benefit of Exception 9, which deals with “imputation made in good faith” by persons for protection of his or others’ interests.

Why did the high court refuse to give relief to Rahul Gandhi?

The high court held that it would not disturb the order of issuance of process if the averments made in the complaint and the enquiry made by the Magistrate or the police prima facie made out a case for issuance of process.

Did the Bombay high court overlook the question of the magistrate’s lack of power to direct police to investigate?

It appears so.

So, did Godse belong to the RSS?

The Punjab and Haryana high court, in the case of Aroon Purie & Ors v. State of Haryana, examined this issue. An article published in the India Today issue of 18 August, 2003 had come up for consideration.

The high court had pointed out in Paragraph 32 of that judgment, as follows:

>If there is a raging debate attributed to the historians…any imputation which is made presumably on the basis of the material which if not even entirely true is near to the truth and inference as truthful as the truth itself; cannot be termed to be defamatory. The doctrine of “fair comment” encompasses that if a publication which broadly speaking true in fact and not made to satisfy any personal agenda or vendetta would seemingly be protected.

Relying on this judgment, Rahul Gandhi’s lawyers argued before the high court that Godse was a member of the RSS

It is true that the Godse was not a member of the RSS at the time of the assassination.

However, Rahul Gandhi’s reported remarks only say that “persons from the RSS shot Gandhiji”. That Godse was with the RSS once and quit the organization before the assassination of Gandhi is a historical fact.

Perhaps Rahul Gandhi got the sequence of Godse’s association with the RSS wrong?

How can an organisation even be defamed? Does it have feelings?

The Bombay high court held that RSS is a determinate body, and it falls under explanation 2 of Section 499 of the IPC

Therefore, any offended member of the RSS can be an aggrieved person and can file a complaint, against a person who intends to harm the reputation of the RSS

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