Re-examining a judgment

The judgment of the trial court in the defamation case of MJ Akbar versus Priya Ramani is the first judicial response in India to the MeToo movement, a cause which has made significant, and positive, impact on the handling of professional relationships at the workplace, to ensure sensitivity and safe space for women to share their traumas and encourage healing. Its impact has been recorded as progressively affirmative, with organizations updating the workplace policies on sexual harassment more broadly; including sexual harassment training and renewed regulations to investigate allegations of sexual transgressions.

The movement in India has essentially been a social media driven movement, and at variance with other countries where criminal prosecution was triggered in some high profile cases.

There has been much media comment on the judgment, including for its notable effort to coordinate the broader social movement to the Indian criminal justice system.

The judgment has also invoked Constitutional law extensively. However, very little attention has been drawn to the question of whether its legal reasoning has been sound, especially while invoking the Constitution.

The principal aim of this piece is to highlight gaps in the judgment from the standpoint of established Constitutional principles; rather than to scrutinise the outcome of the judgment. Looked at it through this lens, the judgment seems to have thrown up more questions than answers, which may attract further judicial, Constitutional and jurisprudential scrutiny.

Dignity versus Reputation

The first is over the ‘right to reputation’ versus ‘right to dignity’ debate. One paragraph of the verdict says: “….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…”

The judgment seems to have clearly given preferential treatment to right to dignity over right to reputation. In the absence of a direct encapsulation of both these rights in the text of any Constitutional provision, the Supreme Court of India has in a catena of judgments included both as a subset of “life and personal liberty” under Article 21. Moreover, the judgment is silent on any judicial precedent or a larger jurisprudential and constitutional principle for placing one subset over the other. In the absence of  settled law,  the judgment is found wanting on what test it has relied upon to choose one over the other.

This point becomes even more significant considering that trial courts are not conferred with the jurisdiction to lay down the law on Constitutional matters. This aspect may, therefore, interest the attention of Constitutional courts.

Last year, a seven-judge bench of the Supreme Court, in a review petition before it in Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors (2020), referred a question to a nine-judge bench to decide, “Which fundamental right takes precedence over the other in such cases where two fundamental rights appear to be competing and conflicting in application?” The case relates to the issue of interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other fundamental rights, particularly right to equality under Article 14.

The judgment also cited provisions of international legislative framework on protection of right to dignity: Universal Declaration of Human Rights 1948, International Labour Organisation (Discrimination and Occupation) Convention 1958, International Covenant on Economic, Social and Cultural Rights 1966 etc. to drive home the importance of right to dignity.

But it has not taken cognizance of the international framework protecting right to reputation. Article 19 of the International Covenant on Civil and Political Rights 1966 recognises ‘respect for the right to reputation of others’ as a restriction on exercise of freedom of expression. Article 12 of the Universal Declaration of Human Rights 1948 protects an individual’s ‘honour and reputation’. Similar provisions are there under the American Convention on Human Rights 1969 and the European Convention on Human Rights 1950.

While efforts of the judgment in amplifying right to dignity are creditable, it would have been much more convincing had the judgment also taken cognizance of international conventions on reputation, and made a reasoned case for its conclusions.

Moving forward, it is important for judicial discourse to comb situations where there may be conflict between fundamental rights inter se generally, and right to reputation versus right to dignity in defamation suits, specifically.

A clearer enunciation of guidelines should be proposed to cater to sexual harassment cases where defamation suits may be seen as standing in the way of victims from narrating their stories or retracting their formal complaints.

Process as punishment

The judgement further observed that “…woman cannot be punished for raising voice against the sex abuse on the pretext of criminal complaint of defamation”. Here, the judgment deserves credit for flagging the sociolegal issue of ‘process as punishment’- a systemic plague affecting the criminal justice system. ‘Process as punishment’ describes the taxing process through which an accused wades through during the criminal trial until adjudication.

The recognition of this malaise and its subsequent invocation to benefit women is welcome. However, its specific application in a case as a ground for judicial decision- making raises interesting questions. Is it suggesting that access to a legal right to defamation cannot be invoked in sexual harassment cases? Or that voices against sexual harassment enjoy immunity from criminal defamation law if they form a part of a broader social movement? Or what situations qualify where recourse to a legal right by an aggrieved party be termed as punishment for accused?

Instead of limiting itself to defamation, the judgment unnecessarily enters into the slippery domain of open questions of constitutional interpretation.