M J Akbar's criminal defamation case against journalist PriyaRamani for her allegations of sexual harassment by him has taken many unexpected legal turns in the court. NEHA VIJAYVARGIYA weighs the possible outcomes in lieu of the MeToo movement.
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A judgment in the trial of Priya Ramani based on the complaint of defamation filed by MJ Akbar is eagerly awaited. The final arguments in the case are nearly complete before the ACMM, Rouse Avenue, New Delhi. Incidentally, the judge recently got transferred to another Delhi court with immediate effect handing the baton, in this case, over to his successor.
One may envy the judge who is going to deliver the judgment in this case. And then one may not. M J Akbar is none other than a member of the current Indian Parliament. Priya Ramani too is a reputed journalist. It is a high-profile case, and it is also going to be of major significance for the MeToo movement in India. It also requires the judge to find the very fine line between right and wrong here. Any error in judgment can have costly social repercussions. I can almost understand why the last judge who had heard the case for almost two years, suddenly had doubts about his jurisdiction to try this case.
Wondering about the impending judgment, I remember a post I wrote on my blog some time ago. I had written that one of the ways to combat rape culture is to end the stigma for the rape victim. I had argued against hiding the identity of the victim, and for naming and shaming the rapist instead.
The stigma around sexual harassment at the workplace is not much different. The victim of sexual harassment at work may not fear social stigma. But no one wants the label of a 'troublemaker' at work. There is also the fear of further victimisation. Hence, 'naming and blaming' the harasser at work should be helpful. Because it will scuttle the stigma for the victim, as in the case of a rapist.
I had qualified my argument with a warning. That the 'naming and shaming' should only be based on a conviction by a court of law. Due process must be followed. One should not be named a rapist merely based on a media or social media trial.
“If the judge discounts the truth of her story, Priya Ramani faces imprisonment for as many as two years or a fine. If this happens, it would certainly not be a first. Sandra Muller, the French journalist who is said to have sparked the MeToo movement in France has been fined heavily for defamation by a Paris Court.
As such, naming M J Akbar in a tweet as the boss who harassed her sexually is the antithesis of due process. And so are all the other disclosures made under the MeToo movement.
But then I ask myself: What about the fact that Ramani could not even get a chance at the due process 20 years ago? What about the complete denial of any legal redress to Ramani for the alleged harassment? And to the plethora of women who could never come before a court of law at the right time? They never reported their ordeals because of the stigma that already existed. Most of their cases are no longer triable before a court of law because of the passage of time. Or are not provable because of the non-availability of evidence.
With this passage of time, do the victims of those cases also forget what happened? Seems unlikely, right? So, what is such a victim likely to do when an international movement comes calling for them? When women across the world start identifying their harassers from the past? And they even find public and media support for their disclosures. It is going to be torturous for any woman to then sit quietly. So, she prepares herself for denials by the person she is going to accuse. And for vicious attacks on social media. And finally, she speaks out.
Can she be blamed for going public during this movement? And not first getting a court to uphold her decades-old story?
When a victim finally speaks out, one possibility perhaps does not even occur to her. That as a result of that disclosure of hers, she too stands to face a criminal trial. She forgets to prepare against a law that India carries along from the British era: The law of criminal defamation.
Although not everything that one publishes against another is criminal defamation. 'Truth' is one of the exceptions. But the person accused of defamation has to prove the truth of her statement. And when was it ever easy to prove sexual harassment? Let alone 20 years after the alleged occurrence.
Ramani did use testimony from a friend she had confided in about the incident. Akbar has argued that all of Ramani's evidence isn't enough to prove that her tweets were true. This case turns on the question of the standard of proof in a case of this kind.
“With her tweets, Priya Ramani may have condemned M J Akbar unheard in the court of public opinion. But the same will happen to Priya Ramani, and in a criminal court.
For me, the greatest proof of Ramani's truth is a fact that it does not relate to the incident alleged by Ramani. It is that many other women too spoke of their own accounts of sexual harassment against Akbar. In a case of the nature of sexual harassment, it is still no easy task for any woman to speak out. It's further unlikely that so many women would misuse a social movement to target the same person. Corroboration of such quality should be enough evidence of the truth of Ramani's story.
But this is my own standard of evidence. It remains to be seen if the judge will form such a legal opinion taking into account the nature of this case.
If the judge discounts the truth of her story, Priya Ramani faces imprisonment for as many as two years or a fine. If this happens, it would certainly not be a first. Sandra Muller, the French journalist who is said to have sparked the MeToo movement in France has been fined heavily for defamation by a Paris Court.
Also, it would definitely serve as a deterrent for women who seek to misuse the MeToo movement. That is, to blackmail or target some men in particular. But it also has the potential to derail the MeToo movement. The courage recently found by women for speaking out may be lost forever. After all, jail for speaking out isn't any better than accepting the harassment as a given. The stigma will be replaced by absolute fear.
“For the MeToo movement, the judge would only have tossed the ball into the lawmakers' court. It would then be upon the legislators to scrap the offence of criminal defamation. Or at least amend the law to carve out cases of sexual harassment from criminal defamation.
With her tweets, Priya Ramani may have condemned M J Akbar unheard in the court of public opinion. But the same will happen to Priya Ramani, and in a criminal court. That is if the judge does not accept her story of sexual harassment for lack of hard evidence.
If Priya Ramani is acquitted
But if the judge is able to see the handicap that Ramani has had to deal with, and acquits her, the fight would not be over yet. For the MeToo movement, the judge would only have tossed the ball into the lawmakers' court. It would then be upon the legislators to scrap the offence of criminal defamation. Or at least amend the law to carve out cases of sexual harassment from criminal defamation. The remedy of civil defamation would still be open for any accused. Anyone who needs it to set the record straight for himself. With civil defamation, the plaintiff can get compensation for the loss of reputation. As opposed to punishment for the accused in a criminal defamation case.
The UK has already repealed criminal defamation from its statute book. The State of California has carved out sexual harassment cases from criminal defamation. The limitation period for sexual offence actions has also been increased in California. And some other states of the USA. India can surely follow suit.
The USA has also produced a very engaging drama series on the MeToo movement called 'The Morning Show'. Incidentally, it involves a celebrated journalist at a top media house in the country. The final episode ends on an introspective note for the journalist. I would recommend M J Akbar to watch this.
(Neha Vijayvargiya is a lawyer based in Indore, Madhya Pradesh. She blogs at 'The Neha Vijayvargiya Blog'. The views are personal.)