“Truth draws strength from itself and not from the number of votes in its favour,” said Pope Benedict XVI. In an ideal world, this may resonate with us all especially in the light of the #MeToo allegations around the world and in India. However, in the real world, these allegations have to be proven and a due process has to be followed.
It was expected that
MJ Akbar and others accused of sexual misconduct would retaliate against the #MeToo outpouring of anger on social media and publications. On October 15, 2018, he filed a criminal defamation case against Priya Ramani, the first journalist who went public with sexual harassment allegations against him, under Section 500 of the Indian Penal Code (IPC) before the Chief Metropolitan Magistrate, Patiala House District Court, Delhi. What The Law Says
A defamation complaint is filed under Section 500 because it provides for the punishment and Section 499 of IPC provides the ingredients of what constitutes the offence of defamation. Both are critical.
To constitute the offence, there has to be imputation and the imputation has to be made in the manner as prescribed in the provision. Further, such an imputation has to made with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made.
The criminal offence emphasizes on the intention or harm. Section 44 of IPC defines ‘injury’ as any harm whatever illegally caused to any person, in body, mind, reputation or property. Section 499 provides for harm caused to the reputation of a person.
There are four explanations to Section 499. Explanation No. 4 is critical as it states that an imputation can only be treated as harm of a person’s reputation if it directly or indirectly does so in the estimation of others (ordinary, right thinking member of society).
There are a number of exceptions to Section 499 as well. The first exception stipulates that 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. The onus of proving these two ingredients i.e., ‘truth of the imputation’ and ‘the publication of the imputation for the public good’ is on the accused.
Section 500 of IPC for punishment is in respect of the said offence. The punishment for defamation is simple imprisonment for a term which may extend to two years, or a fine, or both.
Section 199 of the Code of Criminal Procedure (Cr.P.C) provides for the prosecution of defamation and prescribes the procedure for deciding a defamation case. Every complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
Also Read- A big #MeToo question: What about the men who sexually assault, publicly?
The Supreme Court in Subramanian Swamy vs. Union of India (UOI) and Ors., in 2016 upheld the constitutional validity of Sections 499 and 500 of the IPC.
A Notable Precedent “A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling trade or business”. Halsburys Laws of England, Fourth Edition, Vol. 28
Akbar (the complainant) has stated in his complaint that the accused person has admitted that the complainant has never done anything to her and that her statements are malicious, fabricated and salacious imputations to harm the
reputation of the complainant.
Like in any criminal case, the offence of defamation has to be proved beyond any reasonable doubt and the trial includes examination of ocular and documentary evidence of both sides, arguments etc.
A Hollywood Parallel
It is pertinent to mention that the allegations against Hollywood producer Harvey Weinstein first came to light in a New York Times article on October 5, 2017. He was sacked by the board of his company (that bears his name) three days later. Within a fortnight, police in the UK and US police were investigating a number of sexual assault allegations involving Harvey Weinstein. More women launched allegations and cases against him.
Finally on May 25, 2018 Weinstein turned himself in to the New York police — he was charged with rape and several other counts of sexual abuse against two women. On May 10, 2018 Weinstein's lawyer had said that he believes the allegations are "legally defective or factually not supported".
In Akbar’s case, the defence in the
defamation case has got support to plead the First Exception to Section 499 with the filing of an affidavit by 19 women who had worked in Asian Age and who has asked the court to consider their experiences with Akbar’s “predatory behaviour”.
Our experience in handling defamation cases is that they like other cases in India take 8-10 years and the essence and purpose of the cases are usually lost in the bargain. But this case may prove to be Akbar’s nemesis and end up as a precedent setting case for the #MeToo movement in India.
Krishna Sarma is managing partner at Corporate Law Group.
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