The penal law of defamation can be misused to force women into sullen silence. That is why the summons issued to journalist Priya Ramani who accused the former minister of state for external affairs, M J Akbar, of sexual harassment reminds us of the sexual harassment charge levied by a young woman law intern against former Supreme Court judge, Swatanter Kumar, in 2014. The judge blacked out all news against him through a permanent injunction. For law favours the high-and-mighty despite professing to be equal to all.
Both these women may not have had the resources to file a police complaint against their own employers who were allegedly misbehaving with them. In Akbar’s defamation complaint, a Delhi court issued a summons on a petition filed by the journalist-turned-politician who resigned from the Union cabinet on October 17 after he was accused on social media of sexual harassment as part of the #MeToo campaign in India. Akbar’s lawyers told the court that Priya Ramani had damaged Akbar’s reputation.
She was the first in a long list of women journalists to accuse the former minister of state for external affairs of sexual harassment. Although the Rajya Sabha member denied all charges against him as “false, wild and baseless”, the Editors Guild of India suspended him from membership until the defamation case he had filed against Ramani came to its logical conclusion.
“A majority of our executive committee members suggested the membership of M J Akbar be suspended,” a statement issued by the media body read which meant this august body gave credence to what those from the #MeToo movement alleged against Akbar. Filing a civil defamation suit is cumbersome and expensive. The person defamed has to hire an expensive lawyer, pay the court fees which is a percentage of the amount claimed as damages and wait indefinitely for his suit to come up for hearing.
The late chief minister of Orissa J B Patnaik settled for a front-page apology from Pritish Nandy in The Illustrated Weekly of India after Nandy ran a cover story in 1986 titled “Shocking! The Strange Escapades of J B Patnaik.” The cover story gave lurid details of Patnaik allegedly sexually exploiting both women and young boys 30 years before the #MeToo movement. There is a school of thought that the law of defamation is unconstitutional as it suppresses free speech. This was precisely why motormouth saffron brigade leader Subramaniam Swamy in 2017 challenged the retention of sections 499 and 500 in the Indian Penal Code to allow men of his ilk to get away with unsubstantiated allegations against anybody and everybody.
To the chagrin of Swamy, his challenge to the retention of sections 499 and 500 was dismissed by the former chief justice of India (CJI) Dipak Misra. The former CJI’s 268-page judgement was not only verbose but somewhat unintelligible. It upheld the constitutionality of the criminal offence of defamation. An MA in English literature, former CJI Dipak Misra tried to show off his prose which prompted a journalist and former law lecturer Tunku Varadarajan to describe a sentence in the judgment as “among the worst sentences I’ve encountered in all my years of reading legal materials.”
Just as the high-and-mighty like Subramaniam Swamy have a right to freedom of speech, all Indian citizens have a right to reputation which is part of the right to life as guaranteed by Article 21. What good would life be to a person whose reputation was destroyed by reckless allegations?, On the other hand, the absolute malice test formulated by the US Supreme Court in 1966 has laid down that public figures like M J Akbar have to prove that newspapers knew the allegations were false and deliberately went ahead and published them. This is near impossible to prove which is why the law of defamation in the US does not protect Akbar and his ilk.
Sections 499 and 500 of the Indian Penal Code make defamation a non-cognizable offence in India which means you cannot complain to the police if you are defamed. The aggrieved person has to lodge a private criminal complaint in a criminal court or file a civil defamation suit. Section 499 lays down that truth added to public interest form part of the ten exceptions to defamation. These ten exceptions allow the Indian media wide leeway to criticise public servants and ministers without being held accountable although there are mavericks like judge S J Sharma who banned the media from reporting the trial of the Sohrabuddin fake encounter case in Mumbai. The high court quashed his order.
The point here is the #MeToo movement resulted from remediable injustices becoming irremediable for thousands of hapless women. They had to smile and tolerate sexual harassment from their employers because poverty defeats justice so these women could not approach the courts after decades had elapsed when their complaints would be thrown out for being time-barred. This is precisely the reason for the #MeToo movement naming and shaming M J Akbar.
Revolutions like the #MeToo movement arise when law and justice fail to deliver. Indian women have as much a right to choose their sexual partners or preserve their virginity without being forced to barter it away for career advancement. The adage that men should be forgiven sexual transgressions against women because boys will be boys as Mulayam Yadav infamously said is obsolete. Men like Akbar who allegedly misbehave with women subordinates have to face the consequences.
Justice A K Ganguly who is quoted as a legal expert in news channels, also faced the ignominy of being named and shamed by a young woman law intern who allegedly faced the hilarious situation of a retired Supreme Court judge telling her she was very beautiful and he had fallen in love with her. When he tried to go beyond that, she ran down the stairs with the judge who was in his late 60s, following her to apologise. The travails of Priya Ramani will be avidly followed by the media. Whether she is forced to apologise or not will be watched with bated breath throughout India.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.
