By Rhea E.S. Abraham & Giffin Shaloo, Lawyers based in Kerala.
Following a petition from the Kerala-based Women in Cinema Collective (WCC), the HEMA committee was established in 2017 to investigate sexual harassment and gender inequality in the Malayalam film industry. It was composed of retired High Court Justice K. Hema, former actor Sharada, and retired IAS officer K.B. Valsala Kumari. After a Malayalam actress came out to report that she had been kidnapped and sexually assaulted in Kochi, the WCC was established. Malayalam star Dileep was the subject of a Kerala Police team’s probe.
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| Image Source: Live Law |
Over the last month, Kerala has been struck by the after effects of the HEMA committee. The HEMA committee owes its thanks to the unfortunate actress assault case of 2017 which eventually gave effect to the demand for the setting up of a formal committee to review the conditions of the various players in the Kerala Film Industry, thereby leading to the formation of the Hema Committee in November, 2017. The committee report was published on August 17, 2024 and it immediately hit headlines for revealing the ‘ugly’ realities of the film industry. The Committee reported about the poor working conditions in the film industry and also about the sexually inappropriate behaviour experienced by some women, it is the latter part that has given effect to the wave of ‘Me Too’ in the Malayalam Film Industry.
However, the common people in Kerala have been divided ideologically, while one section is shocked, the other section is doubtful of the veracity of the claims made by the victims considering that some big names have been named and that too after a long time frame. Also, some of those who have been named have also come out to file their counter petitions to prove their innocence after all, the allegation of sexual assault can easily tarnish a person’s reputation. It is in this light that the authors point towards the MJ Akbar-Priya Ramani judgement which gave some answers on the issue of Right to reputation v. Right to Dignity of women. Further, this article addresses the challenge of time which this ‘Me Too’ in Kerala is expected to face.
The Special bench of the High Court
A special bench has been constituted to address the various issues levelled from the Hema Committee Report. Primarily, the question of ‘passage of time’ is expected to be an issue before the High Court. Here, it must be noted that when it comes to crimes of the nature described in Sections 354, 354A, 354B, 354C, 354D and 509 of the Indian Penal Code and Sections 74 to 79 of THE BHARATIYA NYAYA SANHITA, 2023, some of the alleged offences are much prior to 2013, i.e. the year when these variants of assault against women were added to the Act. Thus, some of these sections may not apply to the offences committed before 2013.
Further, Section 468 in The Code of Criminal Procedure, 1973 and Section 514 in Bharatiya Nagarik Suraksha Sanhita, 2023 sets a limitation period of 3 years for offences with a maximum jail time of 3 years. Accordingly, only for the offences in Section 354 and 354B, there is scope of taking cognizance beyond 3 years and that too only if the offence took place after 2013. But, even though the Sections 354A, 354C, 354D and 509 have a limitation period, a legal remedy is provided by Section 473 of The Code of Criminal Procedure, 1973 (Section 519 of the Bharatiya Nagarik Suraksha Sanhita, 2023) wherein, the court is at liberty to take cognizance of an offence after the expiry of the period of limitation considering the strength of the facts and circumstances. Some women have also made allegation of rape, thus in those instances, it is for the court to decide whether the delay is reasonable or not and come to a conclusion as there is no set limitation period.
Relooking M.J. Akbar v. Priya Ramani
The ‘Me too’ movement has seen several waves across the globe since 2006, especially with the foundation stone set by Tarana Burke who started the ‘Me Too’ movement as an organisation to support sexual assault survivors. Later in 2017, the movement became popular when Hollywood saw its own ‘Me Too’. The movement subsequently saw a mega derivation across the globe. Voices of women from India, China, Nigeria, Mexico, Australia etc, all brought to light the unsaid sexual harassment faced by women across the globe. It is in this backdrop, that in India the case of M.J. Akbar v. Priya Ramani highlighted the key issue with the Me Too movement, i.e. the conflict between the Right to Reputation and Dignity. A challenge with the Me Too movement is that there is not much evidence in cases pertaining to incidents from decades ago, considering the long passage of time, so it is the ‘Me Too’ aspect itself which gives weight to the preponderance of possibility of occurrence. Thus, when such an allegation is made, it damages the reputation of a person and there is usually nothing much the person can do to prove otherwise. So does this call for a case of defamation? According to a Delhi court, that is not so.
The allegation of the complainant, M.J. Akbar, was that the tweets and articles posted by Ramani amounted to defamation. The incident at issue began on 12.10.2017 when Ramani wrote an article for the Vogue magazine, addressing her former boss and calling out his inappropriate behaviour. About a year later, she removed the mask from her article by posting a tweet wherein she clearly named Akbar as the perpetrator mentioned in her Vogue article. This naming event was challenged by the complainant. This essentially brought the right to reputation and right to dignity of women, at loggerheads with each other. The accused relied on the truth exception of Section 499 IPC while the complainant challenged the veracity of the truth. However, on the basis of the testimonies of the witnesses, the court relied on preponderance of possibilities and found no need for proving the statements beyond reasonable doubt.
The court therefore found it to be a just cause for acquitting the accused while making the observation that,
“ 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.”
It is the above observation which should be kept in mind in light of the allegations arising after the Hema Committee revelations.
Conclusion
It is undeniable that there may be some malicious cases as well, but a woman who makes a probable case for her claims should not be punished for raising her voice. Also, those who are accused should be seen just as that ‘accused’ tag calls for. Further, evidence may be distorted over time thus, there lies before the courts a major challenge of proving the allegations levelled against the accused persons. It all rolls down to how the courts read the facts and circumstances.
