Speaking at a recently held webinar, Senior Advocate Rebecca John cited the two-year long trial of journalist Priya Ramani to state that the provision on criminal defamation ought to be done away with.
John was speaking at a webinar on Criminal Defamation, Free Speech and right to Equality organised by the Centre for Research in Criminal Justice of the Maharashtra National Law University (MNLU), Mumbai.
One of the defences taken by John during the Ramani trial was that by filing this defamation complaint, MJ Akbar had sought to weaponize criminal defamation. She had argued that this would cause a chilling effect on several women, deterring them from making any further disclosures.
In this backdrop, John said,
“Many countries across the world have done away with criminal defamation, although civil defamation continues to be employed in most of these countries. Is it time for us to revisit the 2017 judgment in Subramanian Swamy? Is it time for us to take away criminal defamation from the statute book? Isn’t it sufficient to have civil defamation liable? Should we penalise someone for free speech?”
As a consequence of the disclosures that were part of the #MeToo movement, John believed there had been a fair degree of push-back faced by those who spoke freely.
She claimed that prosecution of defamation is a direct curb on the prosecution of this fundamental right. She asked,
“Can the court and the justice system be manipulated to the offence of defamation to protect the powerful and curb legitimate speech? Does the balance between the fundamental right of free speech and reasonable restriction lie with silencing victims or empowering them? Can women reporting on sexual harassment at the workplace and newspapers reporting on the allegations be silenced? Can criminal defamation law be weaponised to destroy matters of public interest and public good?”
She spoke on how the law was being used to file SLAPP suits – to silence those speaking in public interest. She pointed out how various jurisdictions made laws specifically designed to restrict such lawsuits including in several states of USA, Australia and Canada.
While India has no such law, certain judicial pronouncements have noted this phenomenon, she noted.
While the law evolved in response to people’s movements and sustained academic and judicial engagement, the failure of courts to address sexual harassment and violence against women is evident in the way in which survivors are treated in courts and the language employed in these cases, she further said.
It was John’s opinion that because women and men are faced with systems that are unable to provide justice, they have taken to social media to reveal the names of those who have harassed them in the past. As a response to this, many women and some men across the world saw defamation suits being filed against them.
She stated that the offence of defamation has to be looked from beyond the simplistic prism of whether the imputation has harmed the reputation of an individual.
“What about the reputation and the harm caused to the women through your actions of sexual harassment? What about the harm caused [to the women], and this harm has a lasting effect on them, which is why they are recalling it 20 years later?”, she added.
Taking the discussion further, she tried to analyse why a movement like #MeToo got the kind of traction it got in America and India.
“So in the context of defamation, free speech and due process, are we being fair to the women is the question we need to ask ourselves. Why do movements like the #Metoo movement get the kind of traction that they did in India and elsewhere? I believe one of the reasons was because it gave women a safe platform to call out their male bosses without accessing their legal system, because the legal system failed them,” she pointed out.
Relying upon her experience, she apprised the participants of the kind of brutality with which women survivors were treated in court and cross-examined.
“I know of a case, where a woman was cross-examined for 120 hours at a stretch. 770 pages of cross-examination in a rape case. What kind of system permits this? And why is this allowed?”
“Our legal system has failed women who have been raped, who have been sexually harassed at the workplace or sexually assaulted. It is very easy to go tell women to file FIRs…Filing a case in court of law and pursuing it, is one of the toughest things that a human being gets to do and for women it is even more tough because they face a hostile system. …And then we say why don’t women complain, why don’t women access the legal system? Who wants to go through this? Who wants to be humiliated in this fashion?”
She also recounted that as iconic as the Vishaka judgment was, it came to be pronounced only because the judicial system had failed activist Bhanwari Devi.
“She lost the case, and her appeal is still pending in the Rajasthan High Court. The Vishaka guidelines and the Prevention of Sexual Harassment at Workplace Act 2013 was the consequence of the struggle of Bhanwari Devi and the collective struggle of 100s of women who wanted equality at workplace and safety. If this is our system, can you blame women for accessing a platform which is outside the legal framework? Would they have done so if the lag framework would have given them instant, robust justice? That is the question all of us need to ask.” John remarked.
Going back to the Priya Ramani case, she said that it was bound to be connected with the Vishakha judgment.
In Vishaka, it was held that the fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment. It recognised the right to dignity and the right to a safe working environment as a constitutional right, John pointed out.
Having passed guidelines and directions to organisations to make work environments conducive for women, it was the Supreme Court which had not complied with the guidelines, John said. It was only after certain Advocates-on-Record filed a petition Binu Tamta v. Union of India in 2015 that the Apex Court framed guidelines for an in-house mechanism for dealing with sexual harassment within the precincts of the Court, pursuant to which several High Courts including the Delhi High Court also framed their own guidelines.
Towards the end of her address, John also touched upon the growing trend of powerful accused obtaining injunctions or media gag orders in cases of rape or sexual harassment, ostensibly to protect their own reputation.
She pointed out that certain provisions were introduced with the intention of safeguarding the identity and privacy of survivors in a patriarchal society that can react adversely to women who have faced sexual assault and harassment.
However, in view of the latest trend, these provisions were being used by the accused in several cases to prevent fair reporting on rape trials.
John ended her address by stating that India had an excellent Constitution that safeguards the right to free speech. Citing the above-mentioned reason, she said that it was time to strike down the provision of criminal defamation from the Indian statute book.