A list of 97 lawyers in the defamation case filed by former minister of state for external affairs and veteran editor MJ Akbar against Priya Ramani, one of the women journalists who have accused him of sexual harassment, has created a flutter. Even journalist Barkha Dutt asked if this is the norm. It is not. However, it sure is just another use of criminal law to silence the women who have spoken out in the #MeToo movement.

It is ironic how the very functioning of the criminal justice system that discouraged women from using it to deal with instances of sexual harassment is now being used to further silence them. It really is a strange double-edged sword, this criminal justice system.

It is a fact that the failure of the criminal justice system played a crucial role in women not coming forward with their complaints of sexual harassment earlier and not taking legal recourse when the incidents occurred. Prior to the Supreme Court’s judgement in Vishaka versus State of Rajasthan in 1997, the only recourse available to women was to file criminal complaints under sections of “outraging modesty” and rape. After the judgement, as very few organisations set up Internal Complaints Committees to deal with sexual harassment cases, criminal law remained the only choice for women. Even with the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, compliance of the law by employers has been abysmal and the criminal justice system seems to be the only option.

However, the criminal justice system has always been antagonistic to women. Reluctance in the filing of first information reports, delays in investigation, and lengthy trials have contributed to reluctance among women to approach the criminal justice system. Nobody knows at the time of registering the complaint if it will be registered at all or how many years the process will take, irrespective of the outcome.

Why women stay silent

The case of Bhanwari Devi in Rajasthan, which was the foundation for the Vishaka guidelines on workplace sexual harassment, is a grim reminder of how slowly the wheels of justice turn. In 1992, the social worker was gangraped for opposing child marriage. Five men were put on trial and in 1995, they were all acquitted. The appeal against the acquittals is since pending before the Rajasthan High Court and no verdict has come till date. Four of the accused are dead while Bhanwari Devi patiently waits for justice. Twenty-six years have passed since the rape and 23 years since the accused were acquitted. In 2013, a senior editor of a magazine was charged with rape in Goa but five years on, there is no verdict and the accused remains out on bail.

Delays are common not only in sexual assault cases but also in most women and child-centric legislations. Many a time, delays force women to compromise and withdraw cases. In cases where women were sexually assaulted when they were young, there is a lot of pressure on them to resolve all legal disputes before they get married. The Protection of Children from Sexual Offences Act, 2012, mandates that the court complete the trial within a year. In reality, though, hardly any trial under the Act is completed within that period. It is the same story for cases under the Juvenile Justice Act. This reality of delays in completion of trials and the appeal procedure discourages women from approaching the criminal justice system.

Another factor that discourages women from seeking criminal justice is the minimal role they play once their complaints are registered. The woman’s voice is lost amid the poor investigation and lack of direct evidence. She is not informed of any development in the case, what sections have been applied, whether the accused is arrested, or whether she should approach the court to oppose the bail of the accused. Often, she comes to know of developments in her case only when she is called to the court to depose after several years have passed.

The woman also receives no updates about developments in the investigation, nor is she given a copy of the chargesheet. It is only with the permission of the court that she can access these papers whereas the accused gets all these documents as a matter of right. This often makes her wonder if she is the accused or the complainant, such is the treatment she receives from the police and the courts.

While granting bail to the accused, judges would earlier hear the complainant on whether the accused should be granted bail, so as to ensure that the woman did not fear a reccurrence of the offence. But the Supreme Court restricted this practice in 2014 in the case of Sundeep Kumar Bafna. It held that the state counsel could adequately argue on whether the accused should be granted bail, and that the complainant, or informant or aggrieved party may be heard at a “critical and crucial juncture of the trial”. The result of this judgement is that though the victim is represented by a counsel or appears in court in person at the time of the bail hearing, she is never heard and can only assist the prosecutor, who may not be completely aware of the facts of the case.

The attitude of judges, and their judgments too, deter women from putting their faith in the criminal justice system. In 2008, for instance, the Bombay High Court acquitted a rape accused because there was no “ejaculation” – whereas the law on rape does not require ejaculation, only penetration. Several women’s groups wrote to the government asking that it challenge the verdict in the Supreme Court, but this was never done. In September 2017, the Delhi High Court acquitted a rape convict, stating that “instances of woman behaviour are not unknown that a feeble no may mean a yes”. This judgement was confirmed by the Supreme Court.

Threat of defamation cases, legal notices

Now this very system that failed women is being used to deter women from naming their assaulters. The voices of women in the #MeToo movement are being asked to stand up to the test of criminal law, when it is that very law that failed them. They are being threatened with defamation cases and legal notices. One hopes the system that did not protect them will surely not once again suppress them.

Defamation is not a cognisable offence in which an accused can be arrested without a warrant. It is also bailable and compoundable, which means the two parties can settle the matter between themselves. And unlike other offences, the police cannot register a case of defamation. Rather, the person alleging defamation has to file a private complaint before a magistrate, and only if the magistrate is satisfied that there is a case made out on the face of it will a notice be issued. Once the notice is issued, the accused, in this case the woman, will have to appear before the magistrate and has the opportunity to engage a lawyer to defend herself against the defamation charge.

Under civil law, the remedy for the person alleged to have been defamed is that he can move court seeking damages and an injunction against the parties who published the stories of the women accusing him of sexual harassment. Some of the individuals accused of sexual harassment in the #MeToo movement have sought injunctions from the courts. These are mechanisms to silence women who have suffered for long. The courts must consider the #MeToo movement in India as a manifestation of the failure of the justice delivery system. Any attempt to gag women at this stage through law suits or criminal cases will further perpetrate the injustice that has gone on for many years.

Veena Gowda and Vijay Hiremath are lawyers and activists working in the field of human rights.