Background on M J Akbar – Priya Ramani case:
In October 2017, journalist Priya Ramani wrote an article in Vogue India, titled “To the Harvey Weinsteins of the World” in which she described an incident of sexual misconduct by an established newspaper editor during an interview in 1993.
In a tweet in 2018, she named M J Akbar as a predator she referenced at the beginning of the above-mentioned article. When named, Akbar initiated a criminal defamation suit (Section 499 and 500 of the Indian Penal Code) against Priya Ramani and also resigned from his cabinet post as the Minister of State for External Affairs.
Post Ramani’s tweet, around 20 women accused Akbar of grave sexual misconduct during his years as editor. Two days before Ramani’s tweet, when #MeToo was taking the world by a storm, Ms. Ghazala Wahab, now executive editor of FORCE had tweeted about when the “floodgates will open about @mjakbar”. She later wrote an article detailing her ordeal with sexual harassment while working as an intern with Akbar. As Wahab had wondered, the floodgates opened and around 20 women came forth with similar accusations.
Thus, began a trial that lasted two and half years, saw courts and judges being transferred, and culminated on February 17th, 2021 with the court acquitting Priya Ramani.
What is criminal defamation?
Section 499 of the Indian Penal Code defines defamation as:
Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Exceptions to the above mentioned are:
First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever re¬specting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further
Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Section 500 defines the punishment for defamation is as follows:
Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
M J Akbar and his legal team stated that Priya Ramani’s account of events was fictitious and that calling him a predator had affected his stellar reputation with friends and family. That the statements were made “deliberately, maliciously, in bad faith to malign Mr. Akbar “. They wondered why she chose to speak many years after the purported incident and further stated that Ramani made those statements out of vengeance and not for the public good.
Ramani defended her statements under the first exception provided in Section 499, ‘Imputation of truth which public good requires to be made or published’. Her legal representation Ms. Rebecca John stated that there was a prevailing culture of silence concerning workplace harassment and the #Metoo movement which late US Supreme Court judge Justice Ruth Bader Ginsberg termed “an attempt to correct a historical wrong”, provided Ramani with a safe space to speak and be heard.
The prosecution was also banking on the court attributing the entire Vogue article to be about M J Akbar, if so, this would have made case for defamation. Ramani in her tweet had stated that she ‘began’ the article with ‘her M J Akbar. Her legal team argued that when she clearly stated ‘began’ the content in its entirety could not be attributed to Mr. Akbar.
On February 17th, 2021, the Delhi Court presided over by Additional Chief Metropolitan Magistrate Ravindra Kumar Pandey acquitted Ms. Priya Ramani of defamation charges stating:
“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.”
The court used “preponderance of probabilities” as a standard of proof for Ms. Ramani’s defence and thereby concluded that Ms. Ramani’s statements were possibly made in ‘good faith’ and for ‘public good’. “Preponderance of probabilities” is the lowest standard of proof and means that it’s more likely than not the facts are as stated by one side, in this case, that side being that of Ms. Priya Ramani’s. This was arrived at based on the testimonies of Ms. Ramani and Ms. Niloufer Venkatraman.
Mr. Akbar’s claim of being “a man of stellar reputation “was rejected based on Ms. Ghazala Wahab’s testimony recounting the sexual harassment she endured while interning with Mr. Akbar. The court observed that: “It cannot be ignored that most of the time, the offence of sexual¬harassment and sexual abuse committed in the close doors or privately. Sometimes the victims herself does not understand what is happening to them or what is happening to them is wrong. Despite how well respected some persons are in the society, they in their personal lives, could show extreme cruelty to the females.”
The court also said a woman has “a right to put her grievance at any platform of her choice and even after decades”. It further takes into consideration the “the systematic abuse at the workplace due to lack of the mechanism to redress the grievance of sexual¬harassment at the time of the incident of sexual¬harassment against the accused Priya Ramani and witness Ghazala Wahab prior to the issuance of Vishaka Guidelines by Hon’ble Supreme Court of India and enactment of The Sexual-Harassment of women at workplace ( Prevention, Prohibition and Redressal) Act, 2013, or their option to not lodge the complaint of sexual-harassment due to the social stigma attached with the sexual¬harassment of women.”
It should also be noted that in the judgement the court has also noted that it “find no mention regarding the clarification and marking distinction that particular portion of the article pertains to the complainant and other portion pertains to other male bosses in general.” And hence that claim by the accused was rejected. This could form the basis of Mr. Akbar’s appeal in higher courts.
Defamation cases have for long been used to silence victims of sexual harassment. And this is not limited to India, the world over we have seen preparators use defamation against survivors who accuse them of sexual assault.
For instance, in 2018, in China, Ms. Wang found herself facing a defamation suit when she wrote on social media that her former boss, Zhou Fei forcibly kissed her during a work trip.
In 2019, Australian actor Geoffrey Rush won a defamation suit against Nationwide News, the parent company of The Daily Telegraph that published articles about his sexual misconduct in 2017.
In 2019, a French court found journalist Ms. Sandra Muller had defamed a former television executive, Mr. Eric Brion. She had accused him of making salacious and humiliating advances to her.
In the USA, actor Johnny Depp filed a defamation suit against ex-wife Amber Heard in response to her accusing him of domestic violence.
Defamation suits have also been used in an alternative scenario in sexual assault cases. A victim accuses a preparator of sexual misconduct after the statute of limitations has expired, the accused denies the claim, thereby implicitly or explicitly labeling the victim a liar. The victim then proceeds to file a defamation suit against the preparator. Examples of these are the cases filed in the USA by Ms. Summer Zervos against Mr. Trump, Ms. E Jean Carroll against Mr. Trump, Ms. Leigh Corfman against Mr. Moore.
While the verdict in Priya Ramani – M J Akbar case is unlikely to bring about any change in legal guidelines or set a precedent with regards to sexual harassment, it is neither the less a milestone for India.
Priya Ramani spoke against a powerful man in media and government and was acquitted: at a time when many others from the entertainment industry and other walks of life are being shunned for speaking out, at a time when a court in Nagpur ruled that ‘mere groping’ does not constitute sexual assault, at a time when the reinstating of the woman whose sexual assault charges against an ex-Chief Justice of India were dismissed by the Supreme Court makes one wonder if justice was sacrificed for a judge.
So, yes this is definitely a boost in the arm for the #MeToo movement, it could lead to many more women renewing their faith in the legal system. If we allow it to this, could lead to many more predators being exposed, could lead to many more victims shedding fear of social stigma and speaking up. This could lead to redressal in how workplaces handle defamation suits following a sexual harassment complaint. In recognizing that the time elapsed between the incident and publication of statement or complaint does not indicate the degree of maliciousness or untruth, the court has tackled the one prominent question that feeds a victim’s unnecessary guilt: Why did she/he not speak up when it happened?
May the community, law enforcement, and other parties involved seize this moment to make our workplaces, homes, and society at large safer!