Why the Court Acquitted Priya Ramani – And What Happens Next

The key takeaways from the verdict, including its value for other women who say #MeToo, and Akbar’s appeal options.

(This was first published on 18 February. It has been republished from The Quint’s archives after MJ Akbar moved Delhi High Court challenging a trial court’s decision to acquit journalist Priya Ramani)

The acquittal of journalist Priya Ramani on 17 February in the criminal defamation case against her by former Union Minister MJ Akbar has been widely hailed as an extremely important moment in the fight against sexual harassment at the workplace.

Not only was this particular attempt by Akbar to silence one of his accusers (and intimidate all the others) thwarted by the court’s verdict, it should also make other men with power and influence think twice before seeking to use legal action to suppress news of their misdemeanours.

But how did Judge Ravindra Kumar Pandey arrive at this verdict? Does the reasoning of the court provide encouragement for other women to come forward and speak their truth? And is it all truly over for MJ Akbar, or could he find a way to turn this around on appeal?

Here are the key takeaways from the Rouse Avenue court’s judgment in the case.

KNOW THE EXCEPTIONS TO DEFAMATION IN SECTION 499 IPC

When the verdict was being read out in court, there was a great deal of concern when the judge observed that the article by Ramani in Vogue in 2017 and her tweet from 2018 saying the beginning of the article was about MJ Akbar, was “defamatory per se”.

So, how did Ramani get acquitted?

Because proving a statement is defamatory is only half the story. Criminal defamation is defined in Section 499 of the Indian Penal Code as making or publishing any imputation about a person intending to harm, or knowing it will harm the reputation of a person.

Any statement or article criticising a person or accusing them of any sort of problematic behaviour will obviously lower their reputation – hence this is always emphasised in legal notices and complaints to courts alleging defamation.

However, the law recognises that a person’s reputation can’t be a shield against their own bad behaviour, and that there can be various circumstances when outing this bad behaviour is in the public interest. Which is why Section 499 of the IPC also prescribes several exceptions to claims of defamation.

If a person accused of defamation is able to show their statement falls within one of those exceptions, this becomes a successful defence for them, leading to their acquittal. Ramani argued that she had two such defences on her side: truth and the public good.

Judge Pandey expressly accepted Ramani’s defence of truth, based on her own testimony about the day in 1993 when Akbar allegedly called her to his hotel room at the Oberoi for an interview, as well as the corroborating testimony of her friend Niloufer Venkataraman, whom she told about the incident when it happened.

PROVING A DEFENCE CANNOT BE MADE INTO AN IMPOSSIBLE BURDEN

Crucially, the judge upheld the settled position of law that to prove any of the defences to a charge of defamation, the standard of proof is a ‘preponderance of probabilities’.

This means the person doesn’t have to definitively prove their defence beyond all reasonable doubt; they just have to show that on weighing the evidence available, their version of events basically has a more than 50 percent chance to be true.

As a result, even though Akbar denied the allegations about what happened at the hotel and there was no other direct evidence which could prove Ramani’s version of events, Ramani had still done enough to prove her defence of truth. It was especially interesting to see that the judge acknowledged that:

“Most of the time, the offence of sexual harassment and sexual abuse committed in the close doors or privately.[sic]”

This is an important thing to note for other defamation cases against a woman alleging sexual harassment at the workplace, which often come down to a he said-she said situation.

Following the reasoning of the court here, the lack of additional evidence will not be detrimental to her arguments; and as long as her testimony is not shaken, her defence of truth will still stand.

NOTE: It should be noted that this does not necessarily mean that a corresponding criminal case for sexual harassment against the man would be successful. This is because the allegations of harassment would have to be proved against the man beyond all reasonable doubt. Therefore even though Ramani’s defence of truth was accepted here, this would not guarantee that Akbar would be convicted, as the standard of proof is different.

THE #METOO MOVEMENT GETS A SHOT IN THE ARM

While the judge does not expressly accept Ramani’s other defence – that statement was in good faith for the public good – his observations about how the “time has come for our society to understand the sexual abuse and sexual harassment and its implications on victims” implicitly acknowledge this.

Moreover the defence of truth under the IPC also requires the statement to be made for the public good, which explains why the judge went into these bigger picture issue.

A significant portion of the last two pages of the judgment is spent exploring the need to recognise how widespread sexual abuse and harassment is, which was, of course, one of the key objectives of the #MeToo movement.

The judgment also addresses two other contentious issues that had been used to challenge the #MeToo movement: (1) Why some were allegations being made after such a long delay? (2) Why didn’t the accusers use alternative formal remedies to air their grievances?

With regard to the question of delay, which had been argued by Akbar’s lawyers in this case, the judge said:

“The woman has a right to put her grievance at any platform of her choice and even after decades.[sic]”

This was because sexual harassment and abuse are attacks on a woman’s right to life and dignity under Article 21 of the Constitution and the right to equality and equal protection of law under Article 14.

Moreover, as the judge noted, there are many situations where the victims of sexual abuse did not realise for years that they were, in fact, victims and had to contend with the shame and social stigma attached to the same.

On the question of alternate remedies, the court noted that prior to the Supreme Court’s Vishakha Guidelines in 1997 and then the POSH Act in 2013, there was no mechanism to address sexual harassment at the workplace.

For incidents which took place before 1997 (like Ramani’s and another of Akbar’s accusers, Ghazala Wahab’s) therefore, there was no way for these women to make complaints or have their grievances addressed. The social stigma problem was also a problem for them.

The #MeToo movement had sought to highlight these problems and to give women a chance to out their harassers and abusers through a social movement and right historical wrongs, even if they had been unable to take action against the perpetrators at the time.

By acknowledging these issues, the Ramani judgment once again gives hope to other women who might want to tell their stories and expose their harassers, without having to worry that the justifiable delay in talking about their trauma isn’t used against them.

AKBAR RUINS HIS OWN REPUTATION – A WARNING TO OTHERS

One of the most remarkable lines in the judgment is when the court accepts Ramani’s contention that Akbar “is not a man of stellar reputation”.

This was one of the crucial arguments that Ramani’s lawyer, senior advocate Rebecca John, had sought to make.

Using the testimony of Ramani and Ghazala Wahab (who had accused Akbar of serious sexual harassment in a searing article in The Wire even before Ramani accused him), as well as an article about other women who’d accused the former minister of sexual harassment and assault, John had argued that Akbar could not back up his claim of a ‘stellar reputation’.

Akbar had made this claim to argue that the allegations by Ramani were particularly damaging to him, citing his years of experience as a journalist, author and politician, as well as to support his denial of the claims of sexual harassment.

However, the judge found that Ramani and Wahab’s testimonies showed this was not the case, which was a boost for Ramani’s defences of truth and public good.

Building on this, the judge also noted that a person’s professional or social standing is not relevant to the credibility of the allegations against them.

“Despite how well respected some persons are in the society, they in their personal lives, could show extreme cruelty to the females... The society should understand that an abusive person is just like rest of the other person and he too has family and friends. He can also be well respected person of the society.[sic]”

These observations are not just important from a legal point of view, offering a rebuttal to one of the arguments used by famous men to cast doubt on their accusers and even gaslight them. They are, as the judge notes, important for society to understand as well, because before this argument enters the courtroom, it is played out in the living room and helps build the culture of impunity that sexual harassment thrives on.

The funny thing is that while Akbar had been accused of sexual harassment, there was never going to be a formal finding against him as none of his accusers planned to go to court.

Thanks to his decision to take Ramani to court, however, his ‘stellar reputation’ has been disavowed in not just the court of public opinion, but a court of law as well – something other men who are thinking of adopting the same approach to silence their accusers should keep in mind.

AN ERROR OF INTERPRETATION AND THE POSSIBILITIES OF AN APPEAL

The progressive nature of the trial court judgment is laudable, but this does not mean that it is a perfect judgment.

The section on the judge’s reasoning for accepting and rejecting contentions of both Ramani and Akbar could have been better fleshed out, for instance. In particular, more detail would have been welcome on why the judge accepted Ramani’s defence of truth.

This is because the finding on the defence of truth could well be seen as contradictory to the court’s finding that Ramani’s whole Vogue article – not just the opening paragraphs – refers to MJ Akbar.

Akbar’s case had relied heavily on the assertion that the entirety of Ramani’s article referred to him. This was because paragraphs 5 to 7 included references that were not part of any of the allegations against him, including one of the lines convicted Hollywood mogul Harvey Weinstein used to use: “I’m ready for my b*** j** now”.

Ramani for her part had always been clear that the whole article had never been about Akbar. In her tweet in October 2018 (which was also part of this case), she said she “began this piece with her MJ Akbar story” – she hadn’t taken any names in the Vogue article.

In her testimony before the court, she explained that the first four paragraphs of the article describe the events that took place at the job Interview with Akbar at the Oberoi hotel. After that, there was a clear break in the narrative, with the reference to “your species” and then the subsequent references to comments by famous men who had been outed in the #MeToo revelations in the West (including Weinstein’s).

Judge Pandey, however, found no distinction in the article. This is admittedly difficult to understand, because there are clear indications in the text that the article is no longer talking about a specific incident and individual, on a plain reading of English.

Following his interpretation potentially affects Ramani’s defence of truth, because she at no point argued that Akbar had committed all the various things mentioned in paragraphs 5-7.

Ironically, while this might appear to be a useful point for Akbar to take up in appeal, the interpretation of the article by Judge Pandey is unlikely to stand in the Delhi High Court, while the remaining findings in Ramani’s favour continue to be on strong footing. Thus, raising this issue in appeal could actually strengthen the argument in Ramani’s favour.

Of course, Akbar may just look at the potential harassment that an appeal will cause to Ramani as sufficient reason to go ahead with it.

However, given the damage this case has already done to his reputation, and the fact that even a successful appeal will not remove the taint of the allegations by other women against him (which are far more serious), such a move would be ill-advised.