THE hearing in M J Akbar's defamation case against Priya Ramani today concluded with Senior Advocate Rebecca John, representing Ramani, finishing her arguments. The court of Additional Chief Metropolitan Magistrate will give the order on February 10.
M J Akbar, a senior journalist had filed a defamation case against journalist Priya Ramani following her accusations of sexual harassment by him.
In an article written for Vogue magazine in 2017, Ramani had narrated her experience of sexual harassment where a senior journalist had called her to a hotel room for her job interview.
Ramani did not name the alleged harasser in the article until a year later when she tweeted MJ Akbar's name.
In the last hearing on January 27, John responded to Akbar's argument on the lack of due care and caution on Ramani's part.
In 2018, Ramani had prematurely tweeted that Akbar has resigned as a Union Minister based on media reports. In fact, Akbar resigned three days later. Ramani had admitted to an honest mistake in the court.
“Posing the question to the court, she asked, "Does it not betray the credibility of the case that they have to cling to this one line as if their life depends on it."
Akbar's legal counsel, Senior Advocate Geetha Luthra had argued that this premature tweeting shows the lack of due care and caution exercised by Ramani and breaks her defence of truth. John responded to this saying that his date of resignation had nothing to do with the allegations.
The defence of truth does not apply to the first part of the tweet concerned with the date. On the other hand, the second part of tweet that says men accused of sexual harassment do not belong in the workplace is in public interest and public good, she said.
John quipped, has Akbar said that the error in date harmed his reputation? She wondered why a mountain has been made from a mole hill on this one line, especially one that has no connection to the case. Posing the question to the court, she asked, "Does it not betray the credibility of the case that they have to cling to this one line as if their life depends on it."
“In a case of defamation, the court assumes the absence of 'good faith' exception under Section 105 of Indian Evidence Act. So, the onus is on the accused to rebut the presumption by showing that due inquiries were conducted before publication of the allegedly defamatory statement.
John chose to rely on a judgment by Justice K T Thomas in Ramakrishnan v Subba Naga. Incidentally the judgment was actually cited by Akbar in his pleadings. In a case of defamation, the court assumes the absence of 'good faith' exception under Section 105 of Indian Evidence Act. So, the onus is on the accused to rebut the presumption by showing that due inquiries were conducted before publication of the allegedly defamatory statement. The court held:
"The words, "care and attention" are qualified by the term "due" and therefore the degree of care expected is what a reasonable man would do in a reasonable manner. It is not necessary to show that the enquiry made by him was so fool-proof or exhaustive, or so threadbare that any possibility of error or chance of any mistake is ruled out therein."
Thus, the court said that standard of proof on the accused person is not the same of the prosecution, which has to prove the case beyond reasonable doubt. It is enough for the accused to prove by preponderance of probabilities.
John argued: "The onus on me is only to satisfy due care and caution of reasonable man in reasonable circumstances. I am not required to call MEA to confirm his resignation."
Akbar has been accused of sexual assault by female colleagues. Ghazala Wahib has alleged sexual assaults by Akbar that spanned over a period of 6 months. Pallavi Gogoi has alleged rape, which Akbar has refuted saying it was a consensual relationship. Aren't these graver allegations, asked John.
“John conceded that the prosecuting side has the right to pick and choose who it prosecutes, but that must satisfy the court's judicial conscious.
"Why did Mr Akbar not pick on others and only pick on me? Is it because as the allegations became graver and intense, Akbar felt he was not on sure grounds anymore?" pondered John.
John conceded that the prosecuting side has the right to pick and choose who it prosecutes, but that must satisfy the court's judicial conscious.
She cited a judgment by the Madhya Pradesh High Court where the court noted that the petitioners were intentionally singled out for prosecution in a defamation case and not other parties who made graver defamatory statements. This, the court felt, showed that they are soft targets. Thus the loss of reputation was not a concern for the respondents but the intention was to harass the petitioners.
Drawing a parallel with Akbar's case, John said, "Akbar went after Ramani only because she is a soft vulnerable target and not women who made far graver allegations because perhaps he was fearful of the consequences."
“"The objective is not to prosecute. The objective is to harass. Selective prosecution of this nature must be deprecated at all costs," said John.
John recalled Ramani's testimony where had said that this prosecution will have a chilling effect on women as it will stop women from coming out and making complaints. "The objective is not to prosecute. The objective is to harass. Selective prosecution of this nature must be deprecated at all costs," said John.
John also wondered why Akbar had never filed an application for the reactivation of Ramani's Twitter account throughout the course of this trial? She said that Akbar had ample time to examine the tweets at the time of filing the case and it wasn't Ramani's fault that they had failed to do that. Yet, they had also presented Ramani's older tweets as evidence and now accuse her of tampering with evidence.
While dismissing Ramani's witness statements and WhatsApp chat records as material evidence, Luthra had asked why no CCTV footage or call records had been placed before the court. Turning the tables, John asked what stopped Akbar from bringing hotel records and CCTV footage into evidence?
She also pointed out that with the evidence submitted by Ramani, they had crossed the onus of preponderance of probabilities.
"At every stage she has backed her testimony with material proof and you are still saying there is no material proof. What material proof do they have?" lambasted John.
Luthra had relied on T G Goswami's case where an imputation was made without leading any evidence.
There is no comparison between the two. This case is distinguishable on facts. This is not a case of no evidence. This is a case of overwhelming evidence against the complainant and in favour of the accused! said John.
(Megha Katheria is a sub-editor at The Leaflet.)