Union minister MJ Akbar’s resignation on Wednesday, following accusations of sexual harassment by around 20 women, will not set a precedent because he is not the first lawmaker to be accused of sexual harassment. And there may be still more to come. But he is undoubtedly the first casualty of the #MeToo movement in India. Going to court is not easy specially after the lapse of time, when proving allegations of sexual harassment without corroborative testimony will end in acquittal of the tormentor. This can give fodder to alleged tormentors like M J Akbar to file a suit for malicious prosecution.
And so, the BJP MP will continue to be a part of the Rajya Sabha, despite the ignominy of sexual harassment he faces. Akbar quit the cabinet two days after he sued one of the 20 women journalists, Priya Ramani, for defamation, alleging the accusations intended to malign his “goodwill, reputation and political standing” — whatever that might mean. The law unfortunately presumes that men like Akbar enjoy a reputation which they do not necessarily enjoy in private among those women whom they have sexually harassed.
The judiciary, too, was swept by similar scandals in the past when Supreme Court judge Asok Kumar Ganguly was indicted by a three-member panel of judges on December 6, 2013, of having made unwelcome sexual overtures to a young woman law intern in 2013, proving that men will be men however old they are and whatever distinguished positions they occupy.
In 2014, another retired Supreme Court judge, Swatanter Kumar, erstwhile chief justice of the Bombay High Court, faced similar allegations from another woman law intern. He promptly engaged a team of senior lawyers to file a defamation suit against national news channels and successfully got an injunction to prevent any further discussion of his alleged misdeeds.
Senior Counsel Indira Jaising was the lone woman lawyer to represent the frightened and intimidated woman law intern. But nothing more has been heard of the defamation suit after it was filed. Justice Swatanter Kumar succeeded in his endeavour to silence the media.
But to return to Akbar, the much acclaimed author of several books announced his resignation on the specious grounds that he was seeking justice in a court in his personal capacity, “I deem it appropriate to resign from the cabinet and challenge these false accusations against me, also in a personal capacity”. A Delhi court will issue notice to Priya Ramani to respond to his complaint.
The criminal law of defamation can be used to harass, intimidate and torment a woman who does not have the financial capacity and the wherewithal to hire expensive lawyers to defend her. Once a statement is proved to be defamatory in a criminal court, the burden of proof shifts to the person making the defamatory statements to prove it was made for the public interest.
Priya Ramani can defend herself by stating the allegations were made for the greater public good because it is expedient for all Indian citizens to know how a minister and senior editor behaves within the closed confines of his Asian Age office at Lower Parel and elsewhere.
Proving the defamatory statements were true is not an adequate defence in a criminal complaint for defamation which stretches between four sections from 499 to 502 of the Indian Penal Code. There are four explanations and ten exceptions which Priya Ramani will have to make use of, to get out of the criminal charge of defamation filed against her by her alleged tormentor, Akbar.
On Sunday, as Akbar returned from an official visit to Nigeria amid demands for his resignation, lawmakers in the BJP ruled it out, stating this would set a negative precedent because the government had nothing to do with the allegations. That may be true, but allowing a tainted minister to continue in the cabinet when the BJP professes to believe in Ram Rajya would sound hollow and insincere.
As a result, a group of women journalists wrote to Prime Minister Narendra Modi and President Ram Nath Kovind, seeking action against M J Akbar. “Continuing as a minister of state for external affairs while trying to vindicate his besmirched public image would be highly unethical and improper and would cast a cloud over any investigation into his alleged misdeeds”. While the much-acclaimed Sushma Swaraj chose to remain non-committal on the issue, two others, Maneka Gandhi and Ramdas Athawale, told the media that the accusations against M J Akbar should be investigated.
But finding corroborative evidence for a court to sentence Akbar for his alleged escapades with his helpless juniors may be chimerical with the passage of time. Courts need either biological, documentary or eyewitness testimony to buttress the claims made by individual women. While civil courts rely heavily on documentary evidence by way of affidavits, criminal courts rely on eyewitness testimony which can be furnished by the 20 women who have said they will stand by Priya Ramani.
She was the first gutsy woman journalist to name M J Akbar after the #MeToo movement — triggered by the Harvey Weinstein scandal in the US — swept across India in the wake of former actor Tanushree Dutta’s complaints of being sexually harassed by actor Nana Patekar. It is well known that the casting couch syndrome afflicts both Bollywood and Tollywood so that those starry-eyed girls who are unwilling to succumb to the roles offered in lieu of sexual favours will find themselves out of the industry.
Olav Albuquerque holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.
