Priya Ramani Ruling is Great, but Falls Short of #MeToo Goals

THE MJ Akbar v Priya Ramani ruling undoubtedly sets a strong precedent against an oppressive form of backlash that women who level accusations of sexual harassment face in India and globally. The supposed "criminality" of defamation, an oppressive colonial-era law, which has historically been used to suppress opposition or dissent against "reputable" (read powerful) individuals, still chokes any attempt to hold individuals accountable for sexual harassment.

Even a small step towards challenging this system is a welcome relief. However, this judgement does not accept the contention that public allegations are made in the public interest because structural barriers prevent or dissuade women from seeking legal recourse. In this way, this ruling does fail to address the complexity of the #MeToo movement.

Delivered by Justice Ravindra Kumar Pandey, the Priya Ramani judgement opens the door to read facts and context from the perspective of the accused [Ramani] and not just the complainant [Akbar]. It says, "…The woman cannot be punished for raising [her] voice against these abuse[s] 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 as guaranteed in Indian Constitution under article 21 and right of equality before law and equal protection of law as guaranteed under Article 14 of the Constitution.

In other words, the court held that reputation cannot be at the cost of life and dignity. This ruling also acknowledges women's complex experiences, which makes it a key moment for the movement against sexual harassment. It will become an integral part of the complex issues championed by activists who struggle against sexual harassment and seek protection for the complainants. Additionally, recording that survivors process their experiences of harassment within interrelated structural and institutional factors strengthens the struggle for substantive equality in law. For that, it is to be celebrated.

Yet the judgement does not attempt to question the validity of the criminal defamation charge and the chilling effect it has on women, whether they have publicly shared instances of harassment or may wish to in the future.

The defence in Priya Ramani 

Priya Ramani took a defence with multiple facets. She deposed that she revealed who had harassed her for the public good; that is, to raise a concern and question sexual harassment at the workplace. She said she hoped that disclosures like hers, part of the MeToo Movement, would empower women to speak up and better understand their rights at the workplace. However, her contention that it was a general statement against male bosses was rejected by the court.

Ramani's contention that the complainant M.J. Akbar is not a man of stellar and impeccable reputation was accepted by the court. "It is further argued that complainant and his witnesses have claimed that complainant is a man of stellar reputation, however, accused through her testimony and testimony of Defence Witness 3 demolished the complainant's claim of having his stellar reputation," the court said.

The judgement displayed an understanding of women's experiences in acknowledging why there are delays in filing complaints or speaking out, "…most of the time, the offence of sexual harassment and sexual abuse committed in the close doors or privately. Sometimes the victims herself does not understand what is happening to them or what is happening to them is wrong. Despite how well respected some persons are in the society, they in their personal lives, could show extreme cruelty to the females.

"The court takes consideration of the systematic abuse at the workplace due to lack of the mechanism to redress the grievance of sexual harassment at the time of the incident of sexual harassment against the accused Priya Ramani and witness Ghazala Wahab prior to the issuance of Vishaka Guidelines by Hon'ble Supreme Court of India and enactment of The Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013, or their option to not lodge the complaint of sexual harassment due to the social stigma attached with the sexual harassment of women.

"The time has come for our society to understand the sexual abuse and sexual harassment and its implications on victims." The court also said, "The woman has a right to put her grievance at any platform of her choice and even after decades."

Thus, the order stands on two stilts—that Akbar was not proven to be a man of stellar reputation and that the incident happened a long time ago, and the woman was left without suitable remedies and confronting the social stigma associated with such harassment. Both were seen to make the delay in sharing the harassment, on any platform, reasonable.

Public interest defence

In 2016, the Supreme Court upheld criminal defamation by saying, "Reputation cannot be allowed to be crucified at the altar of the other's right of free speech." The bench felt the need to strike a balance between the two rights. It read into the situation the fundamental right to life. This was, however, an unfortunate moment in judicial history, and the ruling is perhaps waiting to be overturned at the altar of proportionality.

The overbreadth of criminal defamation has been discussed and opposed by rights-based advocates for good reason. There is a growing tide of countries, including the United Kingdom, that is outlawing criminal defamation, seeing it as a serious infringement of freedom of speech. In the ideal absence of criminal defamation, any harm caused by a public declaration of sexual harassment can still be addressed through a civil defamation suit. That will be a more proportionate alternative to the wrong of harming someone's reputation.

In defamation, civil or criminal, the burden of truth lies on the defendant. The law does not require that a statement must be perfectly accurate to be considered "true". Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. Thus, a "sting" of truth will suffice to defend a defamation case. This applies to cases of sexual harassment, wherein wrongs done in private are difficult to prove.

The defence of truth is still an exceptionally high threshold, especially in cases of sexual harassment where there is a 'he said-she said' situation. To some extent, the ''public interest defence'' suitably plugs the gap.

Section 499 of the Indian Penal Code is where India's exception of "public good" lies. The provision states that the "imputation of truth which public good requires to be made or published" is not defamation. It is not defamatory to impute anything true concerning any person if it is done in the public good. Further, whether or not the imputation is for the public good is "a question of fact".

There is another, third exception, which relates to the conduct of any person touching any public question. The law says, "It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further."

The actual question is whether these exceptions protect women in cases where they accuse a powerful person, especially if they cannot access legal remedies. If yes, then does sexual harassment count as a matter of public interest, or is the public announcement of such harassment in the public interest?

This will decide how to distinguish the public interest from what is not in the public interest: is it because the complainant is a public figure? Or because sexual harassment itself is a matter of public interest due to how pervasive it is?

Perhaps it is time to develop this distinction as it exists in the Defamation Act, 2013 in the United Kingdom.

A public interest defence has statutory protection in the United Kingdom. It was developed in Reynolds v Times Newspapers Ltd and Jameel (Mohammed) v Wall Street Journal and codified in the Defamation Act, 2013 to some extent when it dissolved the test to a set of requirements in the Act.

It is a significant defence because it applies irrespective of the truth or falsity of the statements. To claim this defence, a defendant has to demonstrate that the statement, speech, or publication was on a matter of "public interest" and the defendant must have "reasonably believed" that this was so. Even if a defendant has published untrue statements that have damaged a claimant's reputation, they are still entitled to rely on this defence if they have satisfied these requirements.

This is a useful tool to highlight structural injustices without the chilling effect of imprisonment or damages. Especially in cases of sexual harassment where there are many institutional barriers to proving the "truth" of the matter.

After an amendment to the United Kingdom's Defamation Act, 2013, the complainant has to allege "serious harm" to reputation if they want to file a suit for defamation. This qualifier further restricts the abuse of defamation law and this can be useful in the Indian context.

Similarly, in California state law, the defences of defamation include the defence that the statement was an opinion or fair comment on a matter of public interest and the statement was not made negligently or with malice. Additionally, the burden of proof shifts from the defendant to the complainant in cases of public figures.

This can also be helpful in cases where the power dynamic is skewed.

The defence of public interest in Priya Ramani 

The judge did not accept the "public good" defence, in this case, thus India lost an opportunity to vindicate the purpose and objective of the MeToo movement. It only focuses on the reputation of the complainant and the defendant is believed to the extent that she had a reason for not having taken action earlier.

By contrast, the very notion of public interest stands as the centre of the #MeToo movement. This movement brought attention to how pervasive sexual harassment is in Indian society (and globally) and disrupted the notion that legal recourse is what survivors can easily bank on in such cases. The shocking aspect of MeToo was the naming of men who enjoyed a "good" reputation.

Yet, the core of the Priya Ramani judgement came down to the reputation of the complainant—what the law on the subject itself comes down to. Judgements that hinge on the reputation of the complainant raise the question of how is this reputation to be determined at all? Is it a man of public standing, a public figure?

These are often men with influence within the social order. If the issue is seen from the perspective of women, the question is how is this fine line to be walked by law and the courts?

Merely mentioning #MeToo does not absolve the court from truly taking into account the reasons that women do not file formal complaints related to their harassment. The right to reputation comes with an exception for "public interest", but the court has ignored it in this case.

Had the court taken this into account, the Ramani case could have set a stronger precedent for the development of defamation law. In some instances, legal remedies are either unavailable, or unacceptable, or inaccessible to women. Yet women would need the freedom and right to speak out in the public interest, on harassment and other matters.

If we assume for a moment that there exists only civil defamation, regardless of who the individual complainant is or what position he has in the public, should his reputation be weighed more than the value of the public interest concerned?

For example, many named in the List of Sexual Harassment Accused (LoSHA), are still professors and academics engaged in public life. If a woman who is dismayed by the complaints mechanism shares her experience of harassment (though she lacks evidence), she would be severely disadvantaged in a case of criminal defamation.

An anonymous public list that accuses men of sexual harassment is not a rejection of "due processes" of law. It is a form of disobedience, an attempt to bring attention to the systemic and institutional issues which are interrelated and tied to the complainant's living conditions and reflect her lack of power to access the law.

This has to do with more than just the forms of justice that available remedies provide—it is often about smoke signals that women give other women when they accuse men of harassment. It is also about the acknowledgment of wrongs done by men who enjoy social impunity. The credibility deficit that women experience when they are accusing, due to lack of evidence in these kinds of cases, discourages reporting as well.

Further, most women cannot access high-profile lawyers, and yet if they level charges formally, they confront job insecurity, unemployment, poverty, caste disadvantage, disability, and/or institutional sexism.

The class position is not irrelevant in the Ramani case as well, and we must realise that millions of women cannot engage with the law the same way as her, or those who gave witness on her behalf. Further, it would be futile to believe that all, or most, women can defend themselves from a criminal defamation lawsuit for speaking out (hence the anonymity).

The bottom line is that public interest is at the heart of the #MeToo movement. Thus, although the Ramani judgement serves justice for the day, it does not satisfy the public consciousness raised through the MeToo movement.

This judgement could have advanced the public interest defence to reason out the significance and courage of speaking out in the public interest without having to be buried under the burden of truth explicitly. This would have substantially reduced the threat of defamation.

Doing so could help set the ground for developing statutory protections under the defamation law even in the future. This would make the law better-equipped to address the substantive inequality between people with access to resources in law and society, and those who do not.

(Shivangi Misra is a lawyer committed to human rights law and advocacy. The views expressed are personal.)