There were two watershed moments around workplace equality and dignity for women in India. The first was the Vishaka judgment in 1997 when for the first time the Supreme Court (SC) recognised sexual harassment at the workplace as a form of discrimination and a violation of women’s rights to work and equality. The second was in 2018 when the #MeToo movement emerged in India and emboldened women to openly speak about sexual harassment and violence. While it enabled women to speak up about sexual violence, it was much harder for minority women, Dalit women, transpersons and others from marginalised backgrounds to do so.
Even with these limitations, the #MeToo movement was crucial because despite the guidelines prescribed by the SC in Vishaka and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 being enacted, it was extremely difficult for women to file complaints. There was a huge backlash against women who complained about sexual harassment at the workplace. They were not believed, faced great stigma and were victimised by being terminated from work. The backlash included terming complainants as false, filing counter complaints and seeking gag orders for the media not to cover cases of sexual harassment. By far the most common response has been of filing defamation complaints and suits by alleged harassers against complainants. As Justice Chandru (Retd) of the Madras High Court stated in one instance, “it is a classic case, where the complainant has become the accused, and the accused became the complainants”.
Defamation complaints serve a dual purpose for those accused of sexual harassment: They not only want to protect their own reputation but also to ensure that the complainant is proved guilty of making false statements, is publicly shamed and is harassed to such an extent that she would never be able to have any public or professional existence. This modus operandi was initiated after several revelations of sexual harassment were made publicly in India, especially when the persons accused of sexual harassment were well-known figures. Film actors such as Alok Nath, Arjun Sarja, Nana Patekar and scientist R K Pachauri all filed criminal and civil defamation complaints and suits against the women who had filed complaints against them or those who supported the victims, including lawyers and others such as Priya Ramani.
The verdict in M J Akbar’s complaint of defamation is, therefore, extremely important. It throws out his criminal complaint and upholds Ramani’s right to speak not only about the sexual harassment that she was subjected to but also of that experienced by others. The magistrate notes that: “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 to life and dignity of women as guaranteed in the Indian constitution under Article 21 and right to equality before the law and equal protection of the law as guaranteed under Article 14 of the constitution. The woman has a right to put her grievance at any platform of her choice and even after decades.”
The court recognises the right to equality and dignity often denied to survivors of sexual harassment. By noting that the woman has a right to put up her grievance on any platform and even after a long time, it affirms what survivors of sexual violence have been arguing for, for years. Women who face sexual violence often are unable to access legal remedies such as filing police complaints or even filing complaints before the internal complaints’ committees. This should not cast any doubt on the truth of their claims. Further, it recognises that limitation should not be a bar, especially in sexual assault and harassment claims, because survivors are often unable to address sexual violence until years later. Historical sexual offence is a term used to describe child and/or adult sexual violence that has happened in the past. Sexual violence that happened, months, years or even decades ago is now being recognised by law enforcement authorities the world over and our authorities need to recognise this too. This has also led to many jurisdictions not applying any limitations to complaints of sexual violence.
This case presents an opportunity to recognise victimisation as a form of sexual harassment and discrimination. While Ramani was fortunate to have had the ability to contest the criminal proceedings with the help of a Senior Advocate, the large majority of complainants do not. Victimisation is subjecting a person to a detriment because they complained about sexual harassment or helped someone who has been the victim. Victimisation should, therefore, also be recognised as a form of harassment and discrimination under the law and should include the slapping of defamation and other complaints or cases.
Finally, under the IPC, the offence of defamation has an exception. It is not defamation to impute anything true concerning any person, if it is for the public good. In the instant case, the court recognised the truth of the statements made by Ramani and others about the sexual harassment faced by them. Thus, this verdict gives us the opportunity to expand the defences to defamation law. Sexual harassment and gender-based violence need to be recognised as an issue of public concern. Allegations of sexual assault, intimate partner violence and harassment should be considered matters of public interest and speaking about it is for the public good. Ramani and all the witnesses who wrote and spoke about sexual harassment deserve to be commended for standing up for the truth and aiding in the expansion of the law relating to sexual harassment.
Kothari is a Bengaluru-based senior advocate and executive director of Centre for Law & Policy Research