(This article is written by Ms. Preksha Madan. She is a student of the Faculty of Law, University of Delhi)
INTRODUCTION
The #MeToo Movement began in 2006 with an objective of building a community of survivors of sexual violence who support and encourage each other to heal. It began with social activist, Tarana Burke, who not only wanted to show the world how widespread and pervasive sexual violence is, but to also let other survivors know that they are not alone(1). For survivors of assault, it is a space for connecting and healing.
While this movement began in the United States, the number of voices speaking against sexual violence have only proliferated. As the movement hit India, those who were once emboldened by power and hubris, began to fumble with their words.
Unwanted sexual comments or advances, in order to traffic a person’s sexuality, can be done through a multitude of ways-from rape at gun-point to sexual coercion under a threat of dismissal(2), such despicable acts and behaviors are generally guided by the need to feel power and control over the victim, as most perpetrators are persons in position of authority. One can’t bear to look, but sexual violence is a reality for many; it has spread like a cancer without a cure in sight.
The #MeToo campaign has only highlighted the widespread but poorly understood problem of sexual harassment. It has brought attention to the lack of well-developed institutional reforms in India. Violence or assault, sexual or otherwise, on women is a violation of the fundamental right to live with dignity(3). A culture of impunity feeds the systemic failure to provide justice and relief for female survivors of violence nationwide(4).
M J Akbar v. Priya Ramani [Defamation Case]
#MeToo has by no means remained just a US phenomenon; social media has become a coordinating tool fro nearly all of the world’s political movementsv. Here, social media has been used as an instrument to quell the outbreak of this disease called sexism. With the fall of one rich and powerful man, tremors were felt worldwide; some shaking was felt in India as well when the then Minister of State for External Affairs, M J Akbar had to resign over multiple allegations of sexual harassment made by his former colleagues. Against the allegations, Akbar filed a criminal defamation complaint under Section 499, punishable under Section 500 of the Indian Penal Code, 1860. against journalist Priya Ramani, who had accused him of sexual misconduct.
Defamation is injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk, as in the case of an interference with the property.(6)
The Offence of Defamation
Under the Indian Penal Code, 1860, the essentials constituting the offence of defamation(7) are:
1. The making or publishing of an imputation concerning any person;
2. The means of such imputation are words, writing, signs or visible representations;
3. Such imputation must have been made with the intention of harming the reputation of the person about whom the imputation is published.(8)
Reputation implies the opinion of others about him. Right to reputation is an integral facet of the right to life guaranteed under Article 21 of the Constitution. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to enjoyment of life, liberty and property(9). It is only through publication that others become aware of the alleged defamatory statement(s). Thus, defamation is the publication of a statement which tends to lower a person in the estimation of other members of the society generally. It is libel if the statement is in a permanent form and slander, if it consists of insignificant words or gestures(10). Intention to cause harm to reputation of a person is the sine qua non of the offence of defamation.
Exceptions provided in Section 499:
1. Imputation of truth which public good: 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.
2. Public conduct of public servants: Fair criticism of public servants.
3. Fair comment on public conduct of public men other than public servants: this amounts to criticism on public questions. In order to succeed on a plea of fair criticism, the accused should prove that his expression of opinion was fair and honest and the alleged fact on which the opinion was based was true.
4. Report of proceedings of courts of justice: this is based on the fact that judicial proceedings are true.
5. Comment on cases: this exception protects bona fide comments on cases adjudicated, but not when they are still sub-judice.
6. Literary criticism: 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.
7. Censure by one in authority: Censure passed in good faith by person having lawful authority over another; this exception covers the report made by a superior of the performance of his subordinate public servant.
8. Complaint to authority: it is not defamation if the accusation be made to a person who has authority over the party accused, and that the accusation was made in good faith(11).
9. Imputation for protection of interests: this exception covers honest communications made in the course of business and social intercourse by parties acting in good faith.
10. Caution in good faith: It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
When Journalist Priya Ramani was summoned by the Patiala House Court, she took the defence that she had shared her experience in good faith, encouraging other women to speak out on their experiences of sexual harassment(12), seeking the protection provided under the first exception to Section 499 of the Penal Code,. The Patiala House Court has deferred the pronouncement of the judgment, which it was to pronounce on February 10th, 2021.
Advantages of the #MeeToo Movement
The #MeToo movement has provided survivors of sexual abuse and harassment a safe platform to talk about their shared experiences, by way of a support mechanism that encourages survivors to speak-out against a large systemic issue. From Politics to Films, every sphere of society needs restructuring in order to strengthen rules regarding sexual harassment and abuse.
The challenges surrounding the movement include the poor implementation of laws governing protection of women in the workplace, and the enormity of charges being leveled against the alleged abusers requires strong laws to be in place. The allegations made also cover instances of the past where there was no anti-sexual harassment policy in workplaces, so women often felt helpless and hopeless, so some have been able to gain strength and closure from the #MeToo initiative.
From Victim to Survivor: The #MeToo movement has tried to instill the idea amongst the survivors of sexual crimes that if they speak out, they will be heard and believed.
Taking action, and not mere passive empathy is the result of the movement; it has created a sense of self-reflection and potential transformationxiii amongst members of the movement, which has a far greater impact than expressing empathy towards survivors, to be referred as an afterthought. The movement has even brought to light male victims sharing their experiences of sexual violence.
The movement has two missions- firstly, to help survivors gain power as individuals; secondly, to become an agent for exposing systems of oppression which cultivate or acquiesce to, or are silent observers of sexual crimes.
#MeToo has the capacity to birth structures within institutions that promote sexual-harassment free environments, or at least build safer spaces for survivors, which then empowers them to share their stories without inhibition.
Disadvantages of the #MeToo Movement
The campaign has failed to address the issue of sexual abuse suffered by women belonging to underprivileged/disadvantaged backgrounds, such as those trafficked into prostitution and lower-caste Dalit women(14). Those who have the means of being free and seeking help are being highlighted, but those who need help the most are being ignored. This is not a misguided movement, but a movement which needs to be more inclusive, by including those who are often looked-over, or are routinely subjected to assault such as those residing in villages, victims of sex trafficking; where is their #MeeToo movement?
Many women who have spoken out and whose stories have had such great impacts on the movement are women who have the means to seek help. The movement needs to be expansive and inclusive of all sections of society. Minorities are rarely ever given reserved spaces within movements.
Another criticism leveled against the movement is that it has encouraged people to make false narratives, to specifically target some people to fulfil some ulterior motive, perverse to that sought by the movement. Such instances discredit actual accounts of grievances. Responsibility is an indispensable part of making an allegation, arbitrariness strikes at the very essence of an allegation of sexual misconduct or abuse; if one does not distinguish between an unsolicited text message from an actual instance of sexual assault while labeling a man as a monster, deserving of the same punishment, one’s approach is too narrow and the punishment is not commensurate with the seriousness of the crime.
References:
(1) Where did ‘Me Too’ come from? Activist Tarana Burke, long before hashtags - The Boston Globe ,accessed on 15-02-21 at 15:28
(2) Sexual violence: prevalence, dynamics and consequences
(3) The Verma Committee Report, ( Verma, Seth and Subramanium, 2013, p.65)
(4) Karp, Aaron, et al. Unheard and Uncounted: Violence against Women in India. Small Arms Survey, 2015, www.jstor.org/stable/resrep10686. Accessed 15 Feb. 2021.
(5) Shirky, Clay. “The Political Power of Social Media: Technology, the Public Sphere, and Political Change.” Foreign Affairs, vol. 90, no. 1, 2011, pp. 28–41. JSTOR, www.jstor.org/stable/25800379. Accessed 15 Feb. 2021.
(6) Dixon v holden, (1869) 7 Eq. 488.
(7) Section 499, IPC, 18690 states:”Defamation.—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.”
(8) Sunilakhya v HM Jadwet AIR 1968 Cal 266.
(9) Umesh Kumar v State of Andhra Pradesh (2013) 10 SCC 591.
(10) PSA Pillai, 13th edition
(11) Ibid.
(12) #MeToo: Delhi High Court orders transfer of judge hearing Priya Ramani-MJ Akbar defamation case (scroll.in) , accessed on 14-02-21 at 21:32.
(13) Me too, #MeToo: countering cruelty with empathy, by Michelle Rodino-Colocino
(14) #MeToo campaign excludes India's most vulnerable women, activists say | Reuters , accessed on 13-02-21 at 12:07.
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