On October 8, 2018, journalist Priya Ramani shared her story about being sexually harassed in 1993 by BJP leader and minister M.J. Akbar, back in the day when he was editor of Asian Age. Subsequently, nearly 20 other women also shared accounts of sexual harassment at Akbar’s hands and supported the claim made by her.
On October 18, 2018, Akbar filed a criminal defamation complaint against Ramani. The ensuing trial continued for two and a half years, with several delays in the trial process – the case was transferred on three separate occasions and the accused was compelled to come to court on approximately 20 occasions from Bengaluru to New Delhi for the trial.
It is important to mention that during the trial, a highly uncomfortable and intimidating environment was created for the accused – 98 lawyers were mentioned in the vakalatnama for Akbar, a battery of female lawyers from his legal team would regularly snigger and laugh during the examination of defence witnesses, and remarks disparaging the statements made by the defence witnesses were regularly made by the counsel for the complainant during their depositions.
Akbar had six witnesses examined, while Ramani had three. Niloufer Venkatraman (Defence Witness 2) corroborated the statement made by Priya Ramani (Defence Witness 1) regarding the incident of sexual harassment. Ghazala Wahab (Defence Witness 3) controverted the contention that the complainant was a man of stellar reputation as she bravely described her own account of physical sexual assault by the complainant when she was a young journalist working at Asian Age, where the complainant was a senior editor.
On February 17, 2021, Additional Chief Metropolitan Magistrate Ravinder Kumar Pandey accepted the defence presented by Ramani and acquitted her of the charge of criminal defamation under Section 499 of the Indian Penal Code. The Court observed that the accused had spoken the ‘truth in furtherance of public interest’ which is an exception to criminal defamation under Section 499, IPC.
Ramani and Wahab’s testimonies are powerful – not only insofar as they demonstrate the evidentiary strength of relaying an honest account to the court, but also to the extent that they highlight common issues faced by women subject to sexual harassment at workplaces.
Their stories showcase the lack of institutional mechanisms that were available which could support those undergoing such harrowing experiences. Although at the time of the relevant incidents, there was no legal protection in the form of Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH), Vishakha Guidelines, or the 2013 criminal law amendments, even now, despite their existence, many workplaces fail to comply with the provisions of law.
In this context, the judgment of February 17, 2021 is significant in the manner it chooses to deal with the suite of complex issues brought before the court. The judgment showcases how recent discourse around sexual harassment has the potential of creating a more sensitive treatment by the judiciary to the underlying dynamics that survivors are subject to.
What was recognised in the judgment
Priya Ramani’s statements claiming that Akbar had sexually harassed her were made at the peak of the #MeToo movement in India, which was a largely-online social movement against sexual abuse and harassment. Two crucial aspects that have defined the #MeToo movement are:
(a) employing informal platforms – usually social media – to call out harassers; and
(b) bringing attention to incidents that have occurred in the past.
The point of the #MeToo movement was to enable an environment of solidarity for women who may have been fearful of their abuser, left without any recourse at the time, ashamed, or unwilling to relive their trauma in a gruelling court process. This also led to counter questions regarding the validity of supposed ‘kangaroo courts’ that could ‘tarnish a man’s reputation’ by evading due process. This judgment addresses both these concerns, and more, by entering into a nuanced and empathetic discussion on the trauma suffered by women subject to such instances of workplace harassment.
Legitimacy of informal platforms
#MeToo has often been critiqued as a form of mob-justice, where the accused is punished without duly adhering to the procedure established under law. In her testimony, Ramani expressed how the movement helped her feel empowered to be open about her own harassment at the hands of Akbar. She expressed how this amounted to her showing solidarity with other women, including Wahab.
Owing to the disclosures by women like Ramani and Wahab, several women called out Akbar with their own incidents of harassment. This included women who worked at Asian Age between 1993-2011 who even issued a statement confirming their willingness to testify in favour of Ramani.
Ramani’s primary defence in this trial was that she spoke the truth, and that it was in the interest of the public for her to share her truth. Her only intention in making the disclosure against M. J. Akbar was to empower women to speak against their harassers and abusers, and to better understand their rights at the workplace.
After recognising that no woman should be punished for speaking out against her abuser, the court expressly held that “The woman has a right to put her grievance at any platform of her choice and even after decades.”
Non-relevance of delay in disclosures
In the quote above, the court also acknowledges the right of a woman to speak even after decades about the incident of harassment. The intentions of Ramani and Wahab were subject to questions around the timing of their statements and the purportedly conspicuous delay. In response to such spurious queries, both of them echoed similar reasons: fear of familial resistance towards their jobs, loss of economic freedom, lack of institutional support or grievance redressal mechanism, and internalised societal belief of ‘silence being a virtue’.
The court took an emphatic note of the fact that survivors of sexual abuse very often find it difficult to vocalise their experience of abuse for many years. This is unfortunately not always the case.
Sandra Muller, the woman who started the #MeToo equivalent campaign in France, lost the defamation suit filed against her by her abuser on the ground that too much time had elapsed since the alleged incident, and thus the veracity of her claim could not be established.
However, it should be noted that the judgment primarily attributed such delay to the “shame” and “social stigma” faced by the survivors rather than the role of other structural factors in such silencing (such as intimidation by the abuser, ineffective grievance redressal bodies, and hierarchy-based structures that silence the voices of survivors).
Extracts in the judgment use examples from Hindu mythology which suggest that the court primarily takes issue to the “purity” of a woman being threatened. There is thus a need for the language of law to definitively transition from the harmful rhetoric of “restoring a woman’s dignity” and to instead focus on upholding their rights.
Sexual harassment can be both physical and verbal
One of the allegations raised against Ramani was that she admitted in her tweet that the complainant did not “do” anything to her.
In her evidence, Ramani deposed that her usage of the term implied that while the complainant had not physically assaulted her, he had made sexually coloured remarks. The court recognised that even though there was no overt physical act, the complainant might still have sexually harassed the accused.
This understanding of sexual harassment is also found in Section 2(n) of POSH which includes sexually coloured remarks and unwelcome non-verbal sexual conduct.
Power dynamics in an office space and lack of redressal mechanism
Sexual harassment is a product of power imbalances in society. This dynamic is more acutely felt in structured workplaces where there is a clearer delineation of authority. As the statements of Ramani and Wahab reveal, the vulnerabilities of women are often exploited by superiors who find comfort in the invincibility enabled by these structures.
A recent study found that India ranks 76 out of 100 countries in terms of female opportunity and achievement based on gender equality in business, government, and society.
In Wahab’s account of her reporting the abuse by Akbar to the bureau chief, Seema Mustafa, she stated that “she (Mustafa) was not surprised at Mr. Akbar’s behaviour but there was little she could do about it.”
Even though there are guidelines and laws in place now, their compliance is both flawed and limited, and data on its operation is sparsely available. This judgment explicitly recognises the prevalence of such systematic abuse at places of work, which in the case of Ramani and Wahab was exacerbated by the absence of any redressal mechanisms.
This is a crucial recognition of the unequal power dynamics that continue to prevail in workplaces, which turn a blind eye to sexually abusive and exploitative behaviour and simultaneously encourage passive submission.
Identifying abusers among men of stellar reputation
One of the ingredients to prove criminal defamation under Section 499 of the IPC is that the individual has a reputation in society, and that this reputation has been lowered due to the statements made by the person accused. In support of his contention that the complainant was a man of stellar reputation, Akbar recited his many professional and political qualifications and had five other witnesses take the stand to corroborate his assertion. He pushed forward the narrative that a successful and influential man is incapable of committing the acts that the complainant has attributed to him.
The court unequivocally rejected the assertion that the complainant is a man of stellar reputation while accepting the truth in the statements made by Ramani and Wahab describing their experience of sexual harassment and assault.
The court noted that abusers are not merely outliers in society but can be just like everyone else – with friends, families, and respect in society. In fact, it is this position of power that fosters a sense of impunity in the minds of abusers who expect no consequences for their actions.
Criminal defamation complaints are weaponised to suppress women
Ramani, like many others, was a survivor of sexual harassment. However, India’s draconian and widely worded criminal defamation law turned her from the “victim” to the “accused”. The court denounced the weaponisation of this law by holding:
“The 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 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.”
By holding so, the court has arguably paved way for a limitation to Section 499 of the IPC. Conventionally, debates surrounding the constitutionality of the defamation law have been in the context of the freedom of speech granted under Article 19, Constitution of India, 1950.
In 2016, the Supreme Court upheld the constitutionality of defamation laws by balancing the right of an individual’s “reputation” under Article 21 (protection of life and personal liberty) with another’s right to speech under Article 19. This judgment would thus suggest that Article 21 also operates on a hierarchy, where the woman’s right to life and dignity protected as a fundamental right would trump the Article 21 right to reputation. However, the court has refrained from entering into a detailed discussion on how it has created such a hierarchy, which leaves this question open to be challenged in any potential appeal.
This case emphasises the need to revisit the 2016 judgment, and at the very least, for the courts to define clear limitations to the law of defamation, so that survivors are not dragged through court for speaking out against their abusers.
Defence of ‘honest mistake’
One of the specific grounds taken by the complainant was that Ramani tweeted that he had resigned, days before he did resign, and therefore made a dishonest, defamatory statement. The court notably accepted Priya Ramani’s defence that her tweet was factually incorrect, but that it was an honest mistake based on news she read from another source and genuinely believed to be true.
This finding is critical in defining the contours of criminal defamation in India, which does not expressly permit a defence of ‘honest mistake’ regardless of the fact that an individual may have taken reasonable steps to verify its accuracy. Although this standard is accepted in almost all democracies worldwide, surprisingly the Indian courts have failed to create this exception in our law.
Therefore, it is a monumental and progressive observation made by CMM Ravindra Kumar Pandey in this judgment. However, again, without the detailed legal analysis of why this might be permitted, the judgment leaves this question as a ground that might be liable to a challenge in appeal.
Burden of proof
The complainant challenged the defence of Ramani on two evidentiary grounds: first, that she had not proved her case on a preponderance of probabilities, and second, that the testimony by Niloufer Venkatraman to corroborate her story could not be accepted as it was ‘hearsay evidence’ which is inadmissible under the Indian Evidence Act, 1872.
The court accepted the defence of truth, which it found was proved by the standard of preponderance of probability based on the testimonies of Ramani, Venkatraman, and Wahab. In order to determine the veracity of the statements made by the defence, the court recognised contemporaneous communication between Ramani and Venkataram as being necessary facts supporting the chain of events disclosed by Ramani. Such recognition allowed the communication to be admissible as evidence.
This highlights how confiding in someone, and more importantly, having a record of one’s harassment, can be an important tool in the future if one chooses to come forward with their story. Having said that, there are many cases where a survivor chooses to remain silent for various reasons, such as having no support within the institution where the abuse may have taken place.
Even in these cases, the Delhi high court has held that the sole testimony of a woman may be sufficient to prove her case if it is free from any inconsistencies.
Issues with implementation of the law
While this judgment is certainly more than a glimmer of hope and must be celebrated, we must not forget that we are revelling in a court not punishing a sexual harassment survivor.
The implementation and enforcement of the laws on sexual harassment continues to be weak. A survey by the Indian National Bar Association revealed that 69% of survivors of sexual harassment at the workplace did not report the offence for various reasons, including fear, embarrassment, no awareness about their rights, and a lack of faith in the redressal mechanism. Women from privileged backgrounds who work in the formal sector of employment find it difficult to find any justice or closure, and this reality is far more pronounced in the case of marginalised women in the informal sectors.
We should also remember that Ramani’s victory came at the cost of a two-and-a-half year long tormenting legal battle. A criminal defamation complaint instantly inverses the position of a survivor from the victim to the accused, with the consequent limitations on liberty. The case against Leena Manimekalai tragically demonstrates how speaking against your abuser can lead to restrictions on your basic rights of travel and education.
Aside from issues on implementation, the laws themselves are imperfect and can sometimes be a danger to the women they purport to protect. An example of this is found in Section 14 of POSH which penalises ‘false and malicious’ complaints. Although the section states that the inability to prove your case would not automatically attract this provision, the ambiguity of how to prove malice has had a chilling effect on women who feel deterred to come forward as they fear they may not have enough evidence to back their claim. Illustratively, in 2019, the Delhi high court imposed a fine of Rs 50,000 on a woman who was unable to prove her case before the Internal Complaints Committee.
The issues in making sexual harassment claims against ‘powerful’ men is perhaps best highlighted in the case of the ex-Chief Justice of India, Ranjan Gogoi. The entire institution of the Supreme Court of India not only vociferously came to his defence, but actively flouted principles of natural justice while hearing the case against him. Only a day after Ramani’s acquittal, a bench of Supreme Court closed the case pertaining to the allegations against him with the observation that there was a strong reason to believe that the case was a conspiracy hatched to undermine him.
This rhetoric, and need to vilify and suspect the survivors, continues to find a place in the legal conscience of sexual harassment claims. However, Ramani’s case is a reminder that truth can be a more powerful weapon than a brigade of lawyers and people of influence. It is a reminder of being sensitive to the agency of a survivor to decide when, if, and what recourse she should take. But most importantly, it is a reminder of the strength of female solidarity and power.
Anushree Malaviya is an advocate based in New Delhi, India. She is a member of the Women in Criminal Law Association (WCLA), which is a collaborative group for women in criminal litigation that aims to share knowledge, build skills, and create inclusive professional networks. The author would like to thank Ninni Susan Thomas, Nitika Khaitan, and Muqeet ul Iftikhar Drabu for their inputs on this piece.