Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The Assistant Chief Metropolitan Magistrate, Rouse Avenue District Courts, New Delhi dismissed the complaint of criminal defamation against a noted female journalist. The complainant – another journalist and politician – had accused the journalist of tarnishing his reputation by publishing false testimonies of sexual harassment in the wake of the #MeToo movement. The Court stated that victims of sexual harassment “cannot be punished for raising their voices against abuse on the pretext of a criminal complaint of defamation, as the right to reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in the Indian Constitution” [p. 90], and acquitted the journalist.
On October 12, 2017, Priya Ramani, an Indian journalist, published an open letter to the “Harvey Weinsteins of the World” in the Vogue India magazine. The letter addressed her “male boss” and provided elaborate details of her encounter with the boss in 1993 when he had invited her to his hotel room for a job interview, and behaved inappropriately. The article did not name the boss, but on October 8, 2018, Ramani tweeted a link to the article and disclosed his name as MJ Akbar – a senior journalist and the Minister of State in External Affairs in the Indian Government. On October 10 and 13 2018, she referred to him in additional tweets as “media’s biggest sexual predator” and mentioned his name and the #MeToo movement. In the tweets, Ramani said “[I n]ever named him because he didn’t ‘do’ anything” and that “[l]ots of women have worse stories about this predator” [para. 2]. Media outlets around the world picked up on the story and published articles about Ramani’s statements about Akbar.
Akbar filed a complaint of criminal defamation under section 499 of the Indian Penal Code, 1860 before the local court in Delhi and, on January 29, 2019, Ramani was summoned to face trial.
Justice Ravindra Kumar Pandey delivered the judgment of the District Court. The central issue for the Court’s determination was whether Ramani was guilty of criminal defamation.
Akbar argued that the publication and sharing of the article and the tweets across online news, social media platforms and other platforms tarnished his reputation as a senior journalist, author and parliamentarian. He submitted that Ramani had made false, derogatory and malicious imputations against him in order to defame him with sole ulterior motive of maligning his reputation and his political standing. He laid considerable stress on Ramani’s statement in the article that he did not “do” anything to her, and denied that the events in Ramani’s Vogue article had happened [p. 5].
Ramani submitted that she wrote the article in response to the allegations of sexual assault against American film producer Harvey Weinstein, and that she decided to name Akbar after the #MeToo movement gained momentum in India and women were speaking out about their experience of sexual harassment in the workplace. She responded to Akbar’s submission that she had said he hadn’t “done” anything to her, stating that it was a sarcastic statement. Ramani submitted that “sexual harassment can take many forms … [i]t can be physical, verbal” and that the fact that Akbar had not physically assaulted her did not “excuse” his behavior: she added that “generally sexual misconduct used to be normalized by people unless it results in physical assault” [p. 34]. Ramani submitted that after her tweets a number of women contacted her or tweeted their own stories about being victims of Akbar’s sexual assaults, and maintained that her sharing of her experience was a “legitimate subject of public discussion” [p. 43].
Ramani argued that the publication of the article and the tweets was protected by the defences of truth, good faith, in the public interest, and for public good, in terms of section 499 of the Penal Code [p. 67].
In support of Ramani’s position, another journalist, Ghazala Wahab described her own experiences of Akbar’s sexual assault and her subsequent resignation from Akbar’s newspaper.
The Court discussed section 499 of the Indian Penal Code which criminalized defamation. Section 499 states that “[w]hoever, 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”. The provision lists a series of explanations, illustrations and exceptions. There are five exceptions, which excludes from defamation “truth which public good requires to be made or published”; good faith statements made about the conduct public servants; good faith statements about the “conduct of any person touching any public question”; publications of a “substantially true report” of judicial proceedings; opinions on the merits of civil or criminal cases or the conduct of parties to or witnesses in those cases; comments on the merits of public performances; any “censure passed in good faith by person having lawful authority over another”; any accusation made to an authorized person in good faith; an “imputation made in good faith by person for protection of his or other’s interests”; and the conveyance of 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” [p. 78-81]. Section 500 of the Penal Code sets the punishment for defamation at imprisonment for up to two years, a fine or both.
The Court referred to international standards of human rights, equality and sexual harassment, including the Universal Declaration of Human Rights; the ILO Discrimination Convention; the International Covenant on Economic, Social and Cultural Rights; the UN Convention on the Elimination of All Forms of Discrimination against Women; the ILO Indigenous and Tribal People’s Convention; the ILO Decent Work for Domestic Workers Convention; the ILO Resolution on Equal Opportunities and Equal Treatment for Men and Women in Employment; the UN Declaration on the Elimination of Violence against Women; the Beijing Platform of Action; and the ILO HIV and AIDS Recommendation. The Court noted that India’s participation in these “international treaties on the human rights of women is a testimony of the commitment to ensure dignity and equality of women in all spheres of life as clearly envisaged in the Indian Constitution” [p. 81].
In assessing the Indian legislative framework, the Court describe the 1997 Vishaka Guidelines as “the first ever legal action that provided a broad framework for preventing and addressing cases of sexual harassment of women within the workplace” [p. 83-84]. The Court stressed that these guidelines recognized that workplace sexual harassment constitutes a violation of various rights, including gender equality, right to life and liberty, and the right to carry out any occupation, trade or profession. The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 was enacted in response to the growing calls for addressing sexual violence and confirmed that sexual harassment in the workplace was a violation of the constitutionally-protected right to equality under articles 14, 15 and 21 of the Constitution.
The Court accepted that the tweets and article were defamatory in nature but also accepted the truth of Ramani’s article. The Court stated that a woman who was the victim of sexual abuse “cannot be punished for raising her voice against sex-abuse on the pretext of a criminal complaint of defamation, as the right to reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in the Indian Constitution” [p. 90]. It added that any “attack on the character of a sex-abuser” is only a mechanism of self-defence from a victim and represents the victim’s mental trauma [p. 90]. The Court also noted that there were no mechanisms available to Ramani (or the other witness, Wahab) at the time of the sexual harassment to redress the grievances as they occurred before the adoption of the Vishaka Guidelines and the Act. The Court stressed the need to understand the impact of sexual harassment on its victims and that a “well-respected person in society” may well be abusive [p. 89]. It added that victims live with stigma and shame for many years and that “[s]exual abuse, if committed against a woman, takes away her dignity and her self-confidence” [p. 90]. It added that sexual harassment mostly happens in private and that the victim may not be aware of the wrongfulness of the conduct.
Accordingly, the Court held that the case against Ramani had not been proven and acquitted her.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision affirms the public interest in exposing sexual harassment, and unequivocally declares that the right to reputation of a sexual harasser cannot undermine the right to dignity of the survivor. By protecting the survivor against retribution and victimization, the judgment engenders confidence in the legal process.
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