Hard evidence lacking to secure #MeToo convictions

When injustice becomes law, resistance becomes a duty which is why the #MeToo Movement has revolutionised employment and criminal jurisprudence in India with companies setting up panels to hear and take action against men who sexually harass women at the workplace. Court proceedings are long-drawn and tedious, so that men like minister of state for external affairs M J Akbar who have sexually harassed women inside their cabins may be acquitted for inadequate evidence.

Ever since Tanushree Dutta, in an interview, alleged that Nana Patekar misbehaved with her while filming a special song for Horn Ok Pleassss in 2008, many well-known comedians, journalists, and actors have been named and shamed on social media during the last year as allegations of sexual misconduct continue to erupt spontaneously. Akbar is the last in the series — a man whose alleged penchant for women journalists may cost the Modi government dearly in the ensuing elections.

After the #MeToo Movement entered India in 2017, women who had been sexually harassed at work succeeded in naming and shaming rich-and-powerful men like M J Akbar on social media. Such men got away with unwelcome sexual advances as the victims did not have the resources to go to the courts. The rule is these men are presumed innocent until there is overwhelming evidence to convict them which is impossible as the burden of proof is on the victim who has to bear ignominy and ostracism for women are women’s greatest enemies and may not support them in distress. Like tarot card reader Veenu Sandal pooh-poohed Ghazala Wahab’s complaints of being sexually harassed by Akbar.

And so rather than relive their nightmares before the police and stoic-faced judges, victimised women have no choice but to name and shame men like Akbar who still continues as minister of State for the simple reason that he will never be convicted for sexually harassing the women journalists he allegedly lusted after like Ghazala Wahab who was editor of Force magazine, when he was the Editor of the Asian Age.

Even after he was unceremoniously sacked from the Asian Age in 2008, Akbar’s career graph spiralled upwards, making him more powerful than he was earlier. It is now impossible for women journalists like Wahab to prove their allegations in court after 20 years so that his allegedly rubbing himself over her hapless body while being married to another woman — will remain unproved forever. And unless convicted, such men are deemed to be honourable men. Only the six women journalists whom Akbar allegedly abused know differently. But although the law is against them, technology is not.

It is not easy for a woman to go to the police when she has to support a child or elderly parents and the man she is accusing of sexual harassment signs her pay cheque. This is why Akbar was rightly named and shamed if he indeed was guilty of sexual misconduct as the women journalists alleged. Akbar is just one among many men who prey on women whom they consider vulnerable.

The #MeToo Movement entered India in 2017 after former AIB comedian Utsav Chakraborty was accused of sexual harassment by a writer and fellow comic, who also said that the company had not taken any action despite her complaints. Following the incident, AIB founding member and CEO Tanmay Bhat “stepped away” from his role, while another founding member Gursimran Khamba was accused of violating consent of the woman for whom he “developed feelings”. Khamba vehemently denied this charge and the matter rests there.

Sction 354A of the Indian Penal Code (IPC) criminalises unwanted physical or verbal advances which could outrage the modesty of a woman with a fine and or rigorous imprisonment between three and seven years. The onus or burden of proof rests on the frail shoulders of the women.

And under section 354B of the IPC, any assault or use of criminal force against a woman with the intention of disrobing her can attract between three and seven years jail and/or fine. Also, voyeurism is punishable under Section 354C, stalking under Section 354 D, rape under Section 375 which make penetration a necessary ingredient as in the case of investigative journalist Tarun Tejpal who allegedly violated his junior in a moving lift.

Naming the rich-and-powerful on social media will only expose them and make them relinquish their celebrity status. It is not justice to have them resign from power but for them to realise that sexually oppressing women is unacceptable.

India still does not have any clear-cut legislation protecting victimised women. Until the victims can come forward and be heard, their oppressors like M J Akbar, Tanmay Bhat and Gursimran Khamba will reign supreme in their professions. Their biggest strength comes from the silence and shame that their victims are subjected to. The fact that they will never be convicted by the courts leaves them free to allegedly prey on other women.

In the wake of the #MeToo movement, a few Indian companies have sometimes taken swift and severe disciplinary action against men who prey on women, raising questions in some instances as to whether their responses were justified. But sometimes, women who have been denied upward mobility in competitive environments may make unverifiable complaints against those in power. This is why balancing the goals of the #MeToo movement with principles of fairness to the accused demands reworking criminal and employment jurisprudence.

The background rule of employment at will, coupled with employer contracting practices and the law of sexual harassment, produces a world in which employers tolerate sexual harassment and other misconduct by top-level employees, but aggressively police “inappropriate” behaviour by the rank-and-file. And so, the #MeToo Movement has finally arrived in India, engulfing the whole media and entertainment industry where sexual harassment is the norm rather than the rule.

Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.

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