(a) Women can file sexual harassment complaints even after decades.
(b) Defendant in defamation case to prove case by a 'preponderance of probabilities' and not ‘beyond all reasonable doubt’.
One Ms. Priya Ramani authored an article in Vogue in 2017 on sexual harassment at the workplace, in which she wrote, inter alia, about her experience of harassment at the hands of an unnamed ‘Boss’ (she never named anyone, never averred that all that was written in the article was about one person, and never filed any sexual harassment complaint). The alleged harassment (1993) predated the Vishakha judgment (1997), and the article in Vogue was written 14 years after the alleged incident.
This would have remained at most an instance of sexual harassment which the victim never complained about – till Ms. Ramani was named as a defendant in a defamation case filed by Former Union Minister and former “star” newspaper editor, Mr. MJ Akbar, who felt that the Vogue article was defamatory to him. This is not new in India – Actors Alok Nath and Nana Patekar, Journalist and Editor of Tehelka, Tarun Tejpal, super-cop KPS Gill and scientist R K Pachauri have all responded to allegations of sexual harassment against them by filing defamation suits.
What’s so different now?
The #MeToo movement that began on Twitter (2017-18) but swiftly reached courts of law empowered many women to come out with their complaints publicly, to out the harassers. It did not matter how long back the incident happened. Powerful men like Harvey Weinstein and Jeffrey Epstein were cut to size and jailed in the US – the price for being habitual unwanted and unsolicited sexual predators. This campaign had strong ripple effects of empowering women to fight sexual predators all over the globe.
Recently, the Delhi High Court gave its order in the above defamation case, which should make predatory men wary – the “offence is the best defence” approach which worked in the past, may not work henceforth.
The HC held that the Vogue article was not defamatory to Akbar. Inter alia, it observed that a “Woman has the right to put her grievance on a platform of her choice even after decades... Sometimes a victim may for years not speak up due to the mental trauma.”
In her defence, Ms Ramani invoked two arguments: the truth and the public good. The judge accepted Ramani’s defence of truth against defamation, but denied her defence of public good.
Ramani's “truth as a defence” was accepted based on the belief that part of what she wrote in the article was the truth, applying the test/ standard of evidence of 'preponderance of probabilities' and not the standard of ‘beyond all reasonable doubt’. This too is a valuable principle to come out of this case. It has significantly reduced the onerousness of the burden of proof on the defendant, at least in defamation-cum-sexual harassment cases.
It may interest readers to know that contrarily, section 278E of the Income Tax Act, 1961 places burden of proof of innocence in any proceeding under the Act on the taxpayer always by providing that the “mens rea” or culpable mental state will be presumed to exist in the minds of the person alleged to have committed an offence, and the standard of proof to be satisfied to exonerate oneself is “beyond reasonable doubt”, and not “preponderance of probabilities”. This makes it almost impossible to prove one’s case in an income-tax prosecution. It means that you are guilty until you have proved yourself innocent “beyond reasonable doubt” (emphasis ours).
The Delhi High Court acquitted Ms. Priya Ramani of the accusation of defamation. The judge observed that the professional or social standing of an individual is not relevant in the face of the credibility of the allegations against them.
This case is a landmark one, and should serve to deter potential harassers from thinking that mere filing of defamation suits and claiming damages would suffice to get away from being punished for the crime of sexual harassment. It has tilted the balance of justice back in favour of women accusers.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
Law Gyani’s mission is to make available better, easier-to-use and richer content to the legal community. Our first offering is a Q&A product, aimed at helping LL.B. students to appear for their examinations. While we have begun with answering questions from the last 10 years’ question papers of the Mumbai University’s 3-Year LL.B. course, Law Gyani is committed to expanding the content to cover Q&A on all law papers of most Universities in India.