MJ Akbar v Priya Ramani—Does defamation continue to be a weapon of the powerful?5 min read . Updated: 13 Sep 2020, 03:02 PM IST
From corrupt governments and corporations to alleged sexual offenders, the list of the criminal defamation law’s primary users does not make an inspiring case for retaining it on the statute books
In October 2018, when journalist Priya Ramani and later over a dozen other women made some explosive revelations about the eminent journalist and then parliamentarian and minister M.J. Akbar, it was thought that this would be a turning point in the ongoing conversation about sexual harassment, and ensuring accountability for the actions of powerful men. However, Akbar filed a criminal complaint against Ramani, accusing her of defamation—hearings of the case are presently underway. Defamation is an offence which carries a punishment of up to two years’ imprisonment. In doing so, Akbar has questioned Ramani’s motivations for making such accusations—and perhaps deterred others from sharing their experience of harassment and abuse.
Why a criminal case?
In India, defamation is an offence under both civil and criminal law. As a civil offence, it is aimed at compensating a person for loss of reputation, and will not result in imprisonment or any other criminal record if proved. As a criminal case, while it was originally intended to be used in cases where a defamatory statement may result in public disorder or a breach of peace, it is more commonly used to silence and intimidate critics or accusers. With the possibility of two years in prison, it is an effective threat.
Critics have long argued for the decriminalization of defamation, as has been done in several other countries. For one, it is not an absolute offence, but a justifiable one. As Rebecca John, Ramani’s lawyer, argued in court, there are several circumstances under which a potentially defamatory statement is justified—including truth, public good, public interest, good faith and protection of others. John strongly believes that defamation should not be a criminal offence. Given the issues that are at stake—freedom of speech, freedom of the press, protection of dissent, exposing sexual offences—the pressure to prove one’s statement beyond all reasonable doubt (the standard required by criminal law) is far too intense and unrealistic, and has a chilling effect on speech.In fact, John argues that the standard of proof is onerous not just on defendants to justify their speech, but equally on complainants. Reputation, after all, is a subjective assessment, and it is difficult to prove that one’s reputation was lowered beyond all reasonable doubt. Civil law is far more suited to decide such questions.
SLAPP-ed into silence
Decriminalization becomes all the more important given the increase in uses of SLAPP suits. SLAPP is an acronym for the term Strategic Lawsuit Against Public Participation. A SLAPP suit, which usually takes the form of a defamation complaint, is a lawsuit that is intended to intimidate or silence a person from speaking freely, by burying them in legal procedures and costs till they abandon their criticism. The practice is a common one among giant corporations with deep pockets and endless capacity for litigation, usually against individual journalists, authors, and other critics. It is being used increasingly frequently among political rivals, and, especially after the MeToo movement, against women who are calling out their abusers. The practice has become so common that several countries have anti-SLAPP laws in place as well. In India, the practice has not yet been judicially or legislatively proscribed, except for a warning against it in a 2009 Delhi high court judgment. The Indian Supreme Court in 2016 had the opportunity to decriminalize defamation, following petitions filed by Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal to do so, but it upheld the constitutional validity of the law, despite its propensity for misuse.
In this context, criminal defamation cases are nothing short of a weapon in the hands of the wealthy and powerful, to silence any opposition to their actions. From corrupt governments and corporations to sexual offenders, the list of its primary users does not make an inspiring case for retaining it on the statute books.
The misuse argument
MeToo was a key moment in enabling women to come forward with their experiences of abuse. Many of the incidents happened too long ago for there to be any evidence, at a time when neither the law nor society recognized a lot of these offences. Critics argued that it allowed women to make frivolous allegations without any consequences or burden of proof. That is a separate conversation, but it is striking that in any discussion on criminalizing abuse of women, or enabling them to come forward with their complaints, the instant retort is the bogey of false complaints. It says a lot about our society that this is never a consideration when it comes to other criminal laws, for example the Unlawful Activities (Prevention) Act (UAPA), or defamation itself, despite their widespread misuse. Apparently, only women lie.
In the absence of numbers on proved false complaints, statistics on acquittal and withdrawal of cases are often cited as proof. This ignores the fact that there may be many reasons why a case does not succeed in court, from inadequate legal representation to poor preservation of evidence, and many reasons why a woman may feel compelled to withdraw her complaint. There is a difference between a complaint that does not succeed in court, and one that is knowingly falsely made, and this is important when balancing the risk of reputational damage versus the need to encourage women to come forward when abused. Misuse can happen, but the process of law is punishment enough for most women, and to imagine that the risk of false complaints is so great as to outweigh the risk of silencing women and enabling sexual offences to go unpunished, is laughable.
Social and structural issues have created a serious problem of underreporting of all manner of sexual crimes, including workplace harassment with all its attendant hierarchies, glass ceilings, fear of powerful men and the risk of damaging one’s career. In these circumstances, it is imperative to proactively facilitate women to come forward with their experiences. To create barriers then, and make women jump through hoops when they are already vulnerable, is an absolute mis-prioritization of issues.
The MeToo movement may have made it seem like the floodgates have opened, and women are no longer willing to keep quiet, but we must remember that these are still a mere fraction of the horrors women have faced. They are still only the accounts of women who can bear to tell their stories, and only the stories they can bear to tell.
Mihira Sood is a Supreme Court lawyer and academic specializing in gender justice.