Stay would have served justice better

Congress leader Rahul Gandhi received a setback with the Gujarat High Court dismissing his plea seeking a stay on his conviction in a defamation case over his ‘Modi surname’ remark. A single bench of Justice H M Prachchhak observed that the lower court’s order which handed out a two-year jail term to Gandhi was “just, proper and legal”. The Congress described the order as disappointing but not unexpected. Gandhi is set to approach the Supreme Court and if he does not get relief from the highest court, his disqualification as an MP, resulting from the conviction, would be confirmed. The court said that a refusal of stay on conviction would not in any way result in injustice to Rahul Gandhi and granting a stay on convictions is not a rule but a rarity.

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The High Court’s conclusions and observations have been questioned on many grounds, just as those of the lower courts in the case. The court held that Gandhi’s conviction was right because he had committed a “serious offence” which involved “moral turpitude”. It has been noted that the Indian Penal Code has defined a “serious offence” as one that invites a punishment of imprisonment between three and seven years. Defamation attracts a maximum of two years’ imprisonment, and that maximum punishment, handed out for the first time in India in this case, is widely considered to be disproportionate. It is also pointed out that the court took cognisance of the argument that Rahul Gandhi is a “repeat offender”, though he has not been convicted in any other case. Election campaign speeches in which political opponents seek to make clever jibes against each other are not generally regarded as involving moral turpitude. The references to 10 other cases and even a case filed by Savarkar’s grandson against Rahul Gandhi were also not relevant to deciding an appeal for a stay.

These are questions to be settled by the Supreme Court when it considers the appeal. There is a recent precedent of the Kerala High Court suspending the conviction and 10-year sentence of disqualified Lakshadweep MP Mohammed Faizal in an attempt-to-murder case, which led to the lawmaker’s reinstatement earlier this year. It must be noted that what was sought in the Rahul Gandhi case was a stay on the conviction while the appeal against the conviction itself is pending in the district court. The stay is vital because if it is not granted before elections become due to the Wayanad Lok Sabha constituency, which he represented, his disqualification as an MP, carried out on the basis of the conviction and the two-year sentence given by the trial court, would become a fait accompli.