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An estimated 18-minute read
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Why isn’t Narendra Modi suing Rahul Gandhi for defamation – if the charge is untrue?

The Congress is the principal opposition party in the House of the People. Rahul Gandhi is its Vice-President. Three days ago, he made a highly damaging allegation of personal corruption against the Prime Minister of India, Narendra Modi. He was addressing a public gathering in Gujarat, the home State of Narendra Modi.

The allegation was direct, intentional and specific; he said to the public gathering, words to the effect that:

While Modi was the Chief Minister of Gujarat in 2013 and 214, he was paid 1) a bribe of Rs.40 crores in 9 instalments in 6 months by Sahara and 2) a bribe of Rs.12 crores out 25 crores earmarked by Birla company on certain dates – records with the Income Tax Department show these payments.

The above public allegation was very widely reported in the print and television media. In fact, the media reporting was equally direct and specific. Nothing was left for any inference. A lay person exposed to this news report was readily informed that records with the Income Tax Department show that Modi took a bribe of a definite sum of several crores of rupees from two companies, Sahara and Birla in 2013 and 2014 while he was the Chief Minister of Gujarat. The listener was not asked to take any other factor into consideration to weigh the truth of the allegation in his mind. Instead, he was readily told to take the allegation itself as the truth.

There has not been a more direct or damaging allegation of corruption against a serving Prime Minister of this country in the recent decades. The nature of this public allegation puts it squarely into the domain of public interest. A reasonable person is left to wonder if this allegation is true and if so, what is being done to prosecute Modi for it or if the allegation is untrue, why does not the Prime Minister sue Rahul Gandhi for defamation.

Of course, one is free to simply assume that Gandhi had no basis to say what he did or that Modi is innocent and should not bother with such statements at all – that is, one must simply tread on a political sentiment. However, people like us who hold no political leanings find it difficult to do so and are still left wondering if the allegation is true or if untrue, why isn’t Modi taking his public reputation seriously enough to sue Gandhi to vindicate it.

Reputation and character are two different things. The law of defamation protects your reputation – the presumed favourable public opinion about you. If somebody makes a public statement that 1) tends to injure your reputation in the mind of right thinking members of the society or 2) tends to  invite hatred, ridicule or contempt among the right thinking members of the society towards you or 3) tends to lower your estimate in the minds of the right thinking members of the society so as to let them shun or avoid you, that person has committed a defamation of your reputation. One must distinguish between character and reputation for the purpose of the law of defamation.

Your character is quite different from your reputation – your character is what you actually are and you know it best; the law has very little concern for it. Your reputation, however, is much like your legal property and you may legally protect it from harm or injury – through recourse to the law of defamation. A person’s reputation is protected through the law of defamation in several ways – award of compensatory damages, public apology or retraction, injunction and the like. Remember, however that we are only dealing with the civil law of defamation here. You should also know that while the law of defamation concerns itself with a person’s outward personality, it will still take into account, the injury to his personal feelings in some cases while quantifying damages.

Finally, truth is a complete defense in civil defamation cases. It matters not what your intention is if your statement be true; you will be protected to the fullest extent in civil defamation cases irrespective of your real motive. At the same time, should your statement be false, you will be held liable irrespective of whether you honestly believed your statement to be true. That is, if a statement be defamatory but true, an action for defamation cannot succeed.

Going back to what Gandhi publicly said about Modi, there can be no doubt that what was said was highly damaging to the reputation of Modi and is therefore, defamatory to him. The essential question is whether the allegation is true or if it is false – a question that is eminently in public and national interest.

Let’s explore a few things at this stage. Is Modi legally free to ignore what Gandhi just said or is he is under any compulsion to sue him for defamation? As stated earlier, defamation deals with your reputation that is a form of legally recognised property; it is for you to choose whether to do anything to protect this property – a property that the leading commentators and judges of our times have called as the most valuable property that one could have in any organised society. Modi may simply assume Gandhi’s allegation to be unworthy of any response and leave it there. The law of defamation encourages a subjective perception to the person defamed to decide whether to sue for defamation or to simply ignore the defamatory statement. It could not be otherwise at all. Do not ask here on why the law could not be otherwise – you must engage in a long drawn jurisprudential debate in your mind, to reach your answer.

However, if Modi chooses not to sue Gandhi now, does he invite some disability or lose some right for the future? None. There is a period of limitation to sue for civil defamation, and one is free to bring an action for defamation within that time limit if one doesn’t seek an injunction against continuing defamation – 1 year under the Limitation Act, 1963.

To illustrate, say Modi does nothing for the time being and finds another politician, say, Harishchandra publicly repeating the same allegation a month later. Modi may sue Harishchandra without doing anything at all about Gandhi’s allegation. The law would not ask Modi on why he didn’t sue Gandhi but wants only to sue Harishchandra– for the purpose of imposing a disability or limitation upon Modi. None would be permissible in law. Nor is Harishchandra entitled to take a defense in court that Modi’s silence towards Gandhi itself supports Modi’s guilt and that Harishchandra should not be separately asked to prove Modi’s guilt in a Court. The law of defamation is quite an evolved branch of law and it allows none of it. If Modi sues Harishchandra for what Harishchandra said publicly, the whole responsibility to prove the truth of Harishchandra’s statement will be on Harishchandra alone. He cannot summon Gandhi to prove the truth of his public statement so that he could take shelter under it; the legal responsibility to prove the truth of one’s statement is upon oneself. Nor can he claim that Modi’s refusal to sue Gandhi led him to believe in the truth of what was said by Gandhi. In fact, such a proposition is expressly frowned upon, and the law of defamation has therefore, evolved what is known as the ‘repetition rule’. The ‘repetition rule’ in defamation cases prevents a defendant from drawing comfort by shifting the burden on some other speaker who too had previously said similar words as the defendant.

Having said the above, let us now explore what is desirable is public interest.

Public interest, in my view,  requires one of two things now – 1) criminal investigation of Modi on the charges levelled by Gandhi – assuming, of course, that the charge is readily supported by credible material or 2) Modi suing Gandhi for civil defamation.

We will deal with the first option now. The question that naturally arises is – why is not Gandhi approaching a Court himself to seek a criminal investigation against Modi?

Let us take a break here from a linear narrative. Let us turn to other news reports. News reports suggest that the material on the basis of which Gandhi made that allegation is the very material filed by Common Cause, an NGO before the Supreme Court. There are conflicting reports in the media about what transpired during the court proceedings in this case. However, it is safe to say that this matter which seeks a criminal investigation of Modi on the strength of the same papers also now relied upon by Gandhi is still on the record of the Supreme Court. The Supreme Court directing a criminal investigation against Modi in the coming days remains a full and real possibility.

There are some media reports, however, that say that the Judges had said things such as the ‘documents before them were zero’ and so on. I don’t think any guidance could be had from such an oral statement assuming it was made at all; they are of no significance if they do not form part of the record or the order. Independently, on a reading of a few analytical news reports and the application filed to the Supreme Court by Common Cause through its counsel, Mr.Prashant Bhushan, I must say that a case is plainly made out for a criminal investigation against Modi on the strength of the papers before the Court, in my humble view.

One news reports, however, says that Justice J.S.Kehar had remarked in Court that Sahara would simply forge their papers and that is why, he had recused as a judge from hearing their case. The case before the Supreme Court now is that there are entries in a diary belonging to Sahara and another company Birla that show monies as being paid to ‘Gujarat CM’ or ‘Ahmadabad Modi’ at various points of time. It would be highly unlikely for the Supreme Court to speculate that these entries were mere fabrications - given the fact that statutory authorities had seized the relevant papers. It is true that Justice Kehar had beautifully observed in his judgment in the Sahara case that entries such as ‘Tirupati’  as names of persons were plainly suspicious. Those were, at best for the SEBI and worst for Sahara, fictitious names by Sahara to claim that monies were being routed through non-existent persons. This case, however, is an exact opposite - names of real political-public servants and definite sum of monies against them feature in the diaries of two different and unrelated companies. In fact, the reader might already know that the only person to have been ever jailed by the Supreme Court for two long years in the exercise of its inherent jurisdiction at any time since its establishment was the head of this very company, Sahara – Subroto Roy. He was jailed for defrauding his investors by tens of thousands of crores of rupees before he was released on parole. He might be greatly pleased to know that the Supreme Court doesn’t think that his company would bribe politicians.

The previous and rather, a long-standing standard adopted by the Supreme Court for directing a criminal investigation on the basis of such diary entries is more than met in this case, in my view. The same standard has also been applied in High Courts across the country.

And, it is quite puzzling to note the presence of the Attorney General in this case, according to the news reports, asking for a dismissal of the case. This is a complaint by Common Cause on the basis of papers seized by the Income Tax Department and shared by whistleblowers with it; no personal knowledge is being professed by Common Cause to seek a criminal investigation against Modi. In a case such as this, the fact that the Attorney General is already on the record before the Supreme Court and yet does not deny the existence of these papers makes this a very compelling case. Given that the Attorney General has no particular role at this moment in this case other than to deny the existence of the documents relied upon by Common Cause, his presence but the lack of denial about the existence of those documents has only made the case of Common Cause more persuasive to the Court.

As the Supreme Court does not electronically record its proceedings, one is left to wonder whether some of the news reports are accurate enough.

Going further, the news reports say that this matter was adjourned with a specific direction to the petitioners to come back with more papers as the Court did not find the papers before it persuasive enough. However, though the Supreme Court could have simply dismissed the application by instructing the counsel for Common Cause to approach the Court as and when they obtain more credible material, it did not do so – raising a possibility that the presence of the Attorney General who could not deny the existence of these papers has itself strengthened the case before the Court. That must explain the fact that the Court has asked for more materials – more materials that would only corroborate existing material that was said to be a ‘zero’. So, though the Court might have openly said that it did not see merit in the papers before it, it did not depart from the well-established legal standard for directing a criminal investigation in such cases. In fact, it could not have done so at all. In a country deeply troubled by political corruption, it was not even open to the Supreme Court to arbitrarily throw out a long established and carefully evolved standard for directing a criminal investigation in such business-corruption-politician-bribery cases involving diary entries showing payoffs to politicians, in my humble view.

Then, it is reported that the Attorney General had vehemently sought a dismissal of the case on the ground that keeping such an allegation pending against a constitutional functionary was detrimental to his functioning. However, the allegation in question was very much in public domain for a fortnight or so earlier; if a constitutional functionary doesn’t mind an allegation in the public but is bothered about it when it reaches a Court, his very anxiety would furnish a good invitation for a criminal investigation so that he could come clean through it, it must be said.

The Attorney General is the highest law officer in this country. He cannot act as the personal counsel for Modi in the Supreme Court in this case. His unwarranted presence in this matter opposing the initiation of a criminal investigation against Modi sets a very bad precedent for the Central Government while also lowering the status and standard of the Central Government in the eyes of the Supreme Court. It is another thing that his very presence has by itself made out a compelling case for Common Cause – given his lack of denial about the existence of such incriminating papers in the custody of the statutory authorities.

Coming back to the Modi v. Gandhi scenario, why should Modi sue Gandhi at all? The public expects the Prime Minister of this country to be above board and he cannot be above board when he suffers a devastating and direct allegation of such corruption by no less than the Vice-President of the principal opposition party in the House of the People. The allegation in this case is backed by incriminating papers in possession of statutory authorities. This allegation has become very wide public knowledge and casts the Prime Minister of this country in a very bad light – given it being sourced to papers that exist and which have nothing to do with the maker of the allegation, Gandhi.

Unlike numerous other allegations of corruption levelled in the public generally, this particular allegation doesn’t require the public to first believe in the public integrity or reputation of Gandhi who is himself implicated in a case of cheating, misappropriation and other fraud; a case that has progressed far enough to require Gandhi himself to obtain bail to remain among the public.

Such separation of the allegation from the maker of the allegation is what makes this case unique and therefore, profoundly damaging to the reputation of Modi.

I do not know if Gandhi actually realized the impact of his allegation against Modi. His statements have, in fact, damaged the public reputation of the office of the Prime Minister. Modi should sue Gandhi now to vindicate not just his personal reputation but the reputation of his high office – in the interest of the people of this country.

Will the fact that the Supreme Court is hearing the matter have any bearing on the institution of a civil defamation case against Gandhi? A bit, in practice. However, in theory, it should be none.

The statement by Gandhi was that Modi took a bribe from Sahara and Birla. Gandhi simply did not keep open the possibility that these papers might not necessarily lead to that conclusion. Hence, the burden would be upon him to prove the truth of his statement – by whatever lawful means he chooses – before the Court.

Now, what about the possibility that Modi might be guilty here? The public would wish to believe that the Prime Minister, whoever be it, is an honest person. The public expects their Prime Minister to demonstrate public honesty and probity to a degree enough to overcome Gandhi’s possible defense in a such a case of civil defamation: (drawn from a spirited discussion among lawyers during a recent academic gathering)

  1. that the Income Tax Department did seize these papers but mysteriously did not alert the Central Bureau of Investigation to investigate the bribery evident in its seizure – even if some kind of explanation or evasion was forthcoming;
  2. as the Prime Minister of this Country, Modi readily possess the institutional control to suppress his culpability and it is only to be naturally expected that he abused his power to save himself;
  3. there cannot be any other basis to explain the absence of a criminal investigation against Modi particularly when both the companies were considered by the authorities to be prima facie involved in other forms of wrongdoing - in view of the believable general tendency of a large scale business violator to also gratify public servants through bribery to protect his wrongdoing;
  4. it is highly improbable for a company engaged in large-scale violations to write in its diaries that monies were paid to a politician if it didn’t pay such money. It would be terribly foolish to presume such an unlikely scenario and a criminal investigation alone could reach such an improbable conclusion and it was actively prevented here to suppress Modi’s guilt – in contravention of the law clearly laid out by various Courts that have specifically dealt with such diary entries.

Let us look at the counter from Modi to the above: (again, drawn from a lawyers’ discussion)

  1. he does not interfere in criminal or  police investigations; there simply is no evidence that he did interfere here to prevent a criminal investigation against him;
  2. Gandhi should bring forth the best available evidence and should summon the persons who have made those entries to the Court to find out the truth of what they are alleged to have written in their diaries, even failing to elicit answers directly from them in a court does not let Gandhi to take such a leap of thought;
  3. Gandhi has no evidence of Modi favouring these two companies in any manner during his tenure as the Chief Minister of Gujarat and neither does he have any evidence of Modi favouring these two companies in any manner during his tenure as the Prime Minister and therefore, the persons who have written Modi’s name in their diaries should themselves explain the reason for naming him and in their absence, Gandhi cannot reasonably believe in the truth of his own allegation and therefore, holds no excuse for defaming Modi;

Of course, it would be very interesting to see where our desirable civil defamation case would take Modi and Gandhi. Still, it would be highly desirable for Modi to institute such a case if he were above board and the charge against him is untrue.

Finally, what if the Supreme Court directs a criminal investigation against Modi and the investigator finds Modi guilty as charged? There are two things in this. First, that the Supreme Court directs a criminal investigation against Modi. I have already factored in this possibility – as that is clearly warranted by law. It would be no bar, however, to initiate a civil defamation case against Gandhi.

However, I haven’t factored in the second step – that the prosecutor formally charges Modi with corruption. While that cannot be ruled out, I haven’t gone that far and I have difficulty in traversing there as a reasonable person – a reasonable person would necessarily ask for a criminal investigation against Modi and would hope that a criminal investigation honestly and fearlessly done would exonerate him. A reasonable person, that is, who must stop here for now.

Wait. The Supreme Court of India owes a great responsibility to the people of this country. Here are two very large scale wrongdoers raided and their papers seized by the Income Tax Department. In it is a frightening detail of names of politicians, public servants, dates of payment, time of payment, bribery amount, place of payment and name of conduits. Disturbingly and unbelievably, the Income Tax Department sits still on these papers without turning it over to the Central Bureau of Investigation and the Enforcement Directorate. The public must be deeply troubled with what has been placed before the Supreme Court. The public deserves to know the truth of what these entries really are – through a criminal investigation. And, nothing less.

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