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Some crucial points were made by senior journalist Priya Ramani’s lawyer Rebecca John last week, in the ongoing defamation suit by MJ Akbar.
All of us know about the global MeToo Movement that reached India by October 2018.
Most of us know about the courageous women who came out in the open and expressed publicly the sexual harassment they’ve faced in different scenarios at work at different times of their careers.
Senior journalist Priya Ramani was one of those courageous women who sent tremors across the country when she alleged that the former Union minister of state for external affairs and journalist MJ Akbar had sexually harassed her the day she had applied for a job at The Asian Age. MJ Akbar is the founder of the newspaper.
Some of us also know that MJ Akbar slapped Priya Ramani with a criminal defamation suit for levelling sexual harassment allegations that were ‘a figment of her imagination, fabricated non-events, and false accusations’ damaging a lifetime of a stellar reputation.
The trial has been on since May 2019. Senior Advocate Geeta Luthra had concluded her final submissions on behalf of MJ Akbar in February this year, and after a gap of six months, the case resumed with virtual hearings.
Now, keeping emotions aside, let’s look at the situation legally based on the foundation of reason and the law of the land that will ultimately hold up in the court. And what better source to do that than to look at Priya Ramani’s lawyer, Senior Advocate Rebecca John’s final arguments presented to the court over four exhausting but comprehensive hearings held on 5th, 8th, 14th, and 19th September?
After a thorough read of Rebecca John’s final submissions that make for a consistent and affirmative defence for Priya Ramani, here are the crucial points that Rebecca John made.
This is relevant not only for those who follow the case but for everyone concerned about understanding the grey areas around what amounts to defamation and what doesn’t.
The content at the heart of the defamation suit was not defamatory.
The Vogue Article Priya Ramani authored titled ‘To the Harvey Weinsteins of the World, We will Get You’ dated 12th October 2017, and her three tweets were her truth, in good faith, and for the public good. And that did not make it defamatory. Why? Because under Section 499 of the Indian Penal Code [SL3] , there are exceptions to what qualifies as defamatory. It is not defamation to impute anything true if it is for the public good. And it is not defamation to express in good faith any opinion on the conduct or character of any person.
The allegations of sexual harassment were true.
MJ Akbar had called Priya Ramani to his Oberoi Hotel room at night, the same day she had submitted her biodata at The Asian Age office in Bombay. And then he ‘met her’ in the room. The incident is adequately corroborated by multiple evidences including the statements of Priya Ramani’s friend Nilofar Venkatraman.That was admissible as evidence because Nilofar had close interactions with Ramani both before and after her incident with Akbar. And the message sent by Nilofer to Ramani on calling out MJ Akbar within hours of the tweet being published on October 8, 2018, supports Ramani’s allegations. Nilofer was a witness who was not shying away. Her tweet and evidence were of utmost importance confirming Ramani’s truth.
The allegations were made in good faith as they stood validated by the combined experience of multiple women.
Ramani was not the first person to talk about MJ Akbar’s behaviour. 14 other women, including Ghazala Wahab and Prerna Bhindra had shared their horrific experience with Akbar much before the Vogue article was published. Hence, Ramani did not jump onto any bandwagon in bad faith.
Ramani was also a small part of a large movement. 100s, 1000s of women participated in the MeToo movement. And specific to MJ Akbar, there was an avalanche of disclosures against him. Hers was one of them. These were women who came out with painful stories and it was disrespectful to dismiss them. Ghazala Wahab’s testimony [SL11] for example was without any motive. There was no case against her. She was neither a friend nor a colleague of Ramani.
In fact, through the proceedings before the court, Priya Ramani did not even ‘name’ the other women who voiced sexual harassment allegations against MJ Akbar. That speaks volumes about the truth and the good faith in Priya Ramani’s story. Those 20 spoke out on their own. 19 of them are former or current employees of ‘The Asian Age’ between 1993 and 2000.
There was no ‘impeccable reputation’ to defame at the outset.
A Firstpost article with Priya Ramani’s tweet embedded in it had 18 women making scathing disclosures against Akbar. These were women in responsible positions, speaking responsibly. So, there was no evidence of MJ Akbar’s “stellar reputation” which was claimed to be tarnished by Ramani.
During cross-examination, MJ Akbar himself admitted to having another relationship with a Pallavi Gogoi, a woman who was subordinate to him at the workplace and also 20 years younger. Gogoi had made allegations of rape, and Akbar had refuted those allegations as an ‘attack on his reputation.’ And stated that they were in a consensual relationship.
In any case, the lowering of a reputation for a brief period didn’t meet the gravity requirement of defamation. And though MJ Akbar stated that he worked very hard to earn his reputation, hard work was neither exclusive to MJ Akbar nor was this defamation suit about how hard he worked.
The court must also consider why MJ Akbar filed a defamation case only against Priya Ramani, and not any other women. Priya Ramani was part of a collective who called out MJ Akbar and she wasn’t even the first person to call him out. Yet, she was targeted selectively for this defamation suit. Why? Either everyone’s articles and tweets were defamatory or none were. Or were the other allegations accepted?
It appears the suit was filed to create an overall chilling effect to halt the avalanche of allegations that came out against him at that time.
The allegations of sexual harassment were made in the public interest.
The Supreme Court has recognized the constitutional importance of raising one’s voice when faced with sexual harassment at the workplace in the landmark case Vishakha and Others versus The State of Rajasthan. Priya Ramani was inspired by many other women who had come out in public to share their experiences of sexual harassment at the workplace. They had no motive other than to empower other women. The #MeToo movement was started to correct the structural wrong which was continuing the wrong.
There is a culture of silence about incidents of sexual harassment at workplaces. Delay in voicing such incidents cannot be a barrier.
The reason was factual. When the incident took place in 1993, there was no mechanism to take action against sexual harassment at the Asian Age office, and there was no law on sexual harassment at the workplace in India. After the Supreme Court had framed the Vishakha Guidelines in 1997 advising the Parliament to enact a law on sexual harassment at the workplace, our parliament took 15 years to enact The Sexual Harassment of Women at Workplace Act, 2013. Pretty clear that it takes a lot of time to fight and establish our battles.
Even after the law exists since 2013, there is a culture of silence about incidents of sexual harassment at workplaces. Thankfully, the MeToo movement provided Ramani and many other women a safe platform to talk about harassment they face 20-30 years back. In any case, silence cannot refute the truth.
Now while the case is sub-judice and the judgment of the court is due, I have three observations.
It’s time to decriminalise defamation. Let it be only a civil offence.
It does appear that by instituting a suit of criminal defamation, MJ Akbar has only strengthened the critique against Section 499 criminalizing defamation. Why? Because there are enough cases to show how the section has been consistently used as a weapon by the wealthy and the powerful to intimidate and silence any opposition to their actions.
Defamation is already a civil offence under the law of torts. It aims to compensate a person for loss of reputation, just as in the case of an interference with the property. It does not result in imprisonment or any other criminal record if proved. That is adequate legal remedy for complaints against defamatory acts.
On the other hand, a separate provision for defamation as a criminal offence under Section 499 of the Indian Penal Code was created with the intent to capture cases where a defamatory statement may result in public disorder or a breach of peace. The punishment is a possibility of two years in prison.
So, when a former minister in the parliament files a suit for criminal defamation against a woman who shares her #MeToo story, the intent behind the provision of criminal defamation stands defeated. It will be fair to conclude that Section 499 is being used to threaten and crush voices of dissent, voices against under the carpet wrongdoings, and even voices of free expression that are critical to a healthy democracy that functions ‘for the people, of the people, and by the people.’
There are many reasons why a woman feels compelled to withdraw her complaint.
Not everyone has the capacity and capability to engage with the court of law, hire counsel, and invest that time and energy over everything else in life. It’s a very long arduous journey to ‘get justice’ compounded by the fact that preserving evidences that prove sexual harassment in the eyes of law is a tall ask. That is why complaints filed by women on sexual harassment do not succeed in courts.
Over its journey, there are many reasons why a woman feels compelled to withdraw her complaint including severe victim-shaming. More so when it’s workplace harassment with a real risk of damaging one’s career permanently.
Of course, society will happily assume that the case was falsely made and hence couldn’t survive before the courts, thereby silencing women and enabling sexual offenses to go unpunished. All this makes it even more critical for the courts to look at each sexual harassment complaint as an act of courage at the outset.
Do not fall prey to misogynistic discourses.
The outlook towards sexual harassment complaints as ‘false complaints’ or ‘women resorting to revenge tactics without consequences’ is a farce propagated by weak-minded casual misogynists. Let’s not fall prey to such discourse. After all, we are all aware of the sociological conditions of violence against women. We are all aware of the entitled men who play our bosses at workplaces, and unfortunately, even in our homes.
So, when you look at Indian women who came out of their shells and spoke up during the #MeToo movement, celebrate that courage. Celebrate that shift in narrative. Celebrate that opportunity to empower the sisterhood. Believe me, publicly talking about the pain of sexual harassment is the toughest thing to do, compounded by the fact that it is also one of the toughest things to prove. So, let’s not agree to misogynistic discourses at the drop of the hat.
The next hearing is listed for 13th October where Senior Advocate Geeta Luthra will present her rebuttal arguments.
I end with the very quote Senior Advocate Rebecca John concluded her submissions with – the words of the iconic feminist Justice Ruth Bader Ginsburg (passed away on 18th Sep) on the arbitrary barriers that women face in work-life.
“I was a law school teacher. And that’s how I regard my role here with my colleagues, who haven’t had the experience of growing up female and don’t fully appreciate the arbitrary barriers that have been put in women’s way.”
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Anusha Singh is a lawyer turned corporate communications consultant and writer. She works with organizations
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