A Much Need Overcorrection: Moral but Unconstitutional?

As a society we have allowed, actively or passively, women to be sexually harassed and harassers to roam free. The judgment in Ramani's case, as it stands today, is morally an absolute victory and worth celebrating. But constitutionally, it comes with its own issues, writes NAMAN JOSHI.

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A TRIAL Court in Delhi recently rendered a verdict of acquittal in favour of Priya Ramani in the M.J. Akbar's case. In 91 pages the Metropolitan Magistrate goes through the evidence and legal provisions, both national and international, to arrive at a blanket defence for alleged victims of sexual harassment in criminal defamation cases by relying on Article 21 of our Constitution.

The Court's reliance on Article 21 is well intended, and no reasonable person can have a quarrel with the fact that the right to life granted to us constitutionally includes a right to live with dignity and sexual harassment is an affront to one's right to dignity, indeed right to life. However, the question before the Court arose in the conspectus of a trial for criminal defamation which under the Indian Penal Code has ten statutory exceptions.

The defamatory statement was an open letter published in Vogue which then spread like wildfire through social media with Ramani herself naming MJ Akbar as the person referred to in the first part of her open letter. Thus, the Court was to decide if the contents of the article were defamatory and whether Ramani had a statutory defence.

Ramani claimed her statements were true, made in good faith, in the public interest, and for the public good. Interestingly, she did not plead the defence of caution intended for good of persons to whom it is conveyed which in my opinion was a defence available to her in view of the fact that she claimed Akbar was a predator with a pattern of harassing women over whom he had some power. At the time of the statements being made as well as through the trial, and even today Akbar is a Rajya Sabha MP and was Minister of State for External Affairs until 17.10.2018 (he resigned 10 days after the publication of the open letter).

Be that as it may, what seems to have weighed with the Court is that many women raised the same issue qua Akbar lending credibility to Ramani's statements, sexual harassment by its very nature takes place most of the times behind closed doors and thus a disproportionate burden could not be placed on the victim to provide evidence of what happened, and systemically how women have chosen not to raise their voice on account of social stigma and position of the accused.

The Court carves an "Eleventh Exception" to Section 499 of the Indian Penal Code by holding that "[T]he woman cannot be punished for raising voice against the sex-abuse on the pretext of criminal complaint of defamation as the right of reputation cannot be protected at the cost of the right of life and dignity of woman guaranteed in Indian Constitution under Article 21 and right of equality and equal protection of the law as guaranteed under Article 14 of the Constitution." 

Respectfully, the reference to Article 14 is unnecessary inasmuch as there is no issue of equals being treated unequally by the law – criminal defamation law is gender-neutral and the laws even if seldom relied on or actually implemented are already in place to prevent sexual harassment and punish the harassers.

But Article 21's invocation to create a carte blanche defence for all victims of alleged sexual harassment against all alleged harassers, in my view, seriously clashes with Article 19(2) of the Constitution.

While free speech is a guarantee to citizens, it is also reasonably restrictable in instances of defamation. To say that without fear of criminal defamation (a law that is outdated and in my opinion needs to be done away with entirely) a woman can make allegations against a man creates a direct conflict between both parties' rights under Article 21 and the woman's right under Article 19(1)(a) and the man's right under Article 19(2).

A Trial Court is not a court of record nor is it imbued with constitutional powers – powers that in the Supreme Court's case explicitly allows the Supreme Court to lay down the law and in the High Court's case explicitly and by judicial interpretation allow the High Courts to lay down law precedentially (often couched as guidelines to nudge the legislature into action). Ramani's case may well be the outcome we all deserved but apart from persuasive value across Delhi, there is little precedential value until at least the Delhi High Court rules upon it.

Firmly in the realm of speculation, I see the Delhi High Court upholding the acquittal but tinkering with some of the more forward-thinking observations of the Trial Court not because it disagrees with the thought and itself but merely because said thought is not reflected in the law as it stands. There is no "Eleventh Exception" to criminal defamation and the blanket proposition that a woman can never be found guilty of criminal defamation so long as the defamatory statement pertains to an allegation of sexual harassment cannot be accepted. Such a blanket proposition would be an overcorrection – perhaps long overdue in view of centuries of harassment that women have faced – but sets a dangerous and abusive precedent.

Oliver Wendell Holmes at the beginning of the 20^th century said hard cases make bad law. Sexual harassment cases constitute some of the hardest cases as evidence is scanty or often does not exist. The incident reported is generally after a significant passage of time making an accurate recollection humanly impossible especially under the fire of cross-examination in court. Societal stigma is immense, especially for the victim; and as a society, we in India, family, peers, police, lawyers, judges even, are not always fully sensitive to the victim.

The reason hard cases make bad law is because of overwhelming pressure and immediate overwhelming interest. It is almost a manifestation of a pressure cooker whistling when the pressure is just too much. As a society we have allowed, actively or passively, women to be sexually harassed and harassers to roam free. The judgment in Ramani's case, as it stands today, is morally an absolute victory and worth celebrating. But constitutionally, it comes with its own issues – a man's right to reputation, also a facet of the right to life guaranteed by Article 21 is no more or less than a woman's right to dignity, also a facet of the right to life guaranteed by Article 21.

A woman allegedly harassed does not get absolute freedom of speech qua her alleged harasser when all other citizens life in a setup where with the liberty of Article 19(1)(a) comes the restrictions of Article 19(2). Today an "Eleventh Exception" is sought to be carved out. What stops a twelfth one for say a person from a scheduled caste or tribe alleging that a non-member of such caste or tribe is a perpetual harasser and casteist. Or a thirteenth one for an LGBTQ person making a statement against an alleged homophobe. Table's turned; would we celebrate as enthusiastically if some court somewhere had said that a man alleging that a woman sexually harassed him should have blanket immunity from criminal defamation? I doubt it.

(Naman Joshi is an advocate practicing in Delhi and is the Founding Partner of Chambers of Joshi & Singh. The views expressed are personal.)