Remedy of Criminal Defamation:
#MeToo campaign had started in India a few years ago, after similar incidents were reported in Hollywood about Harvey Weinstein. Then Minister MJ Akbar was accused of sexual harassment by a journalist. Minister sued the journalist for criminal defamation and after trial lost.
The criminal complaint was doomed from the beginning. There are two reasons and both are legal reasons. First is the nature of proof. To prove a criminal complaint the evidence must be of such quality so as to prove beyond reasonable doubt that accused is guilty.
Second is that the an accused has a very light burden to prove. As following extract will explain, the accused can deny the allegation on oath and unless her ‘truthful character’ is impeached this evidence is enough to disprove.
It was a case of one testimony against another duly corroborated by the presence of Akbar at the place and time. Unless the complainant could deny the place and his presence at the given time, this complaint was non-starter.
It would have been better if he had filed a suit for injunction restraining her from speaking again. In civil suit standard of proof is much lower and “a person can not be called names without legal cause”. The undersigned judgement cites historical epic stories to overcome this principles but that has no legal value.
Extract from judgement:
“Accused contended that incident of sexual harassment against her by the complainant M.J Akbar was duly proved by her own testimony and testimony of the witness DW2 Niloufer Venkatraman and DW2 corroborated the presence of the accused in Oberoi Hotel at 07.00 pm in December, 1993 and her meeting with the complainant M.J Akbar regarding her job interview. Accused also contended that after the sexual harassment by the complainant in his bed room of the Oberoi Hotel, Bombay, when she returned, she disclosed the fact and circumstances of the sexual harassment to DW2. The Court accept the contention of the accused and the possibility of defence of the accused that she disclosed the truth regarding the incident of sexual harassment against her at the Oberoi Hotel, Bombay in December, 1993 on the basis of testimony of accused DW1 and its corroboration by the testimony of DW2 Niloufer Venkatraman. The Court also accept the contention of the accused that complainant is not a man of stellar reputation on the basis of testimony of accused DW1 and testimony of DW3 Ghazala Wahab. 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 takes consideration of 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. The time has come for our society to understand the sexual abuse and sexual harassment and its implications on victims. The society should understand that an abusive person is just like rest of the other person and he 90too has family and friends. He can also be well respected person of the society. The victims of the sexual abuse not even speak a word about abuse for many years because sometimes she herself have no idea that she is a victim of abuse. The victim may keep believing that she is at fault and victim may live with that shame for years or for decades. Most of the women who suffer abuse do not speak up about it or against it for simple reason “ The Shame” or the social stigma attached with the sexual harassment and abuse. The sexual abuse, if committed against woman, takes away her dignity and her self confidence. The attack on the character of sex abuser or offender by sex abuse victim, is the reaction of self defence after the mental trauma suffered by the victim regarding the shame attached with the crime committed against her. 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 woman has a right to put her grievance at any platform of her choice and even after decades.“