A year earlier, when news of multiple allegations against Hollywood producer Harvey Weinstein broke in the US, Ramani had written a piece for Vogue India ^[1] in which she recounted her experience of being sexually harassed at a job interview several years before. In December 1993, she wrote, a very senior editor had invited her—a rookie looking for a job in journalism—to his hotel room. During the meeting, he drank alcohol, sat close to her, and asked her personal questions about her relationships, making her deeply uncomfortable. She was 23 at the time. He was two decades older, a “celebrity editor” who “everyone said had transformed Indian journalism.”

Over 25 years after that evening, women in India’s media and entertainment industries began recounting their own experiences of workplace harassment. In solidarity with #MeTooIndia, Ramani tweeted the name of the editor in question. It was M.J. Akbar, now a minister in the Indian government. The revelation set off a long and serious conversation, in which several women added their allegations about Akbar’s misconduct to Ramani’s. In a few weeks’ time, Akbar retaliated. He filed a case of criminal defamation against Ramani, alleging that she had damaged his “reputation and goodwill.”

That December afternoon in court, however, Magistrate Pahuja had concerned himself with the reputation of another person: Geeta Luthra, Akbar’s lead lawyer. ^[2] Luthra had complained to the magistrate about a story published the previous day by reporter Anoo Bhuyan for The Wire. There had been “personal remarks” against her team and her, Luthra protested. Bhuyan had reported that Luthra and her team had laughed loudly, “sometimes covering their mouths with their books,” at a witness who’d been describing the ordeal of being molested in the office by Akbar. ^[3]

Pahuja took heed of Luthra’s complaint and reprimanded journalists for making “irresponsible” and “personal” remarks against the lawyers. Bhuyan and some other journalists in the courtroom asked him what he meant by “personal comments.”

“You know what I mean,” Pahuja replied, “and please don’t repeat it in future.” He added, “I can only request the learned journalists and news correspondents to please maintain decorum of the court.” Wasn’t laughing in court against its decorum? Bhuyan asked.

“Sexual violence is not a funny issue,” the senior journalist Harinder Baweja, a friend of Ramani’s, added.

A packed courtroom had seen and heard Luthra and her team laughing and joking around during a traumatic deposition, but the court still had leeway to disagree over whether or not the fact of their laughing should be made public.

It was an exchange that highlighted a fundamental absurdity in the criminal defamation provision in the Indian Penal Code: truth is not an absolute defence unless it is for public good.

This is an indication of how far back in time this particular law is stuck. Criminal defamation in India is the holdover of archaic colonial legislation, guided by seventeenth-century notions of honour and respect for rank. It is often weaponised by deep-pocketed entities to throttle press freedom and exact revenge for perceived slights.

It is, therefore, a powerful judicial weapon with which to attack a movement that began because of a real social problem: the lack of remedy for pervasive misogyny that harms women in public and semi-public spaces.

Scholars have long been critical of criminal defamation, because the sentence carries jail time, as opposed to the purely monetary fines imposed in civil suits. Criminality necessarily has a public aspect to it. The state chooses to prosecute crime—be it murder or theft—because a single crime can pose a threat to public order and breach the peace of society as a whole. But as the lawyer Gautam Bhatia argued in his book on free speech, ^[4] most defamatory statements don’t cause breach of peace; yet the law, by and large, is still in use in many countries in Europe, Latin America and Asia. (The UK abolished its criminal defamation law in 2009.)

“Traditional defamation cases are filed by individuals in the public realm against the press, or by commercial entities when they feel they may lose business because of an imputation made,” the advocate Abhik Chimni explained. “Now that has changed. The set of defamation cases after sexual harassment allegations is very recent.”

In 2019, Chimni appeared for respondents in a case of civil defamation brought by the artist Subodh Gupta in the Delhi High Court. These respondents had posted allegations of misconduct against Gupta on an Instagram account called ‘herdsceneand,’ which collated stories of sexual harassment in Indian art circles, and Gupta sued the handle for damages of ₹5 crore. The case was disposed of in February 2021 after an out of court settlement: the Instagram account removed the posts and “expressed regret,” and Gupta agreed that the account could maintain its anonymity. 

In September 2021, the filmmaker Leena Manimekalai’s passport was impounded in the wake of a criminal defamation case filed by filmmaker Susi Ganesan following an allegation of sexual harassment. (The order was later set aside by the Madras High Court.) ^[5] I’m aware of at least two other cases in various courts around India in which women who publicly alleged misconduct during #MeToo conversations are being sued for defamation by the men in question.

In court, #MeToo allegations are at a disadvantage because they come up against the same hallowed legal concept with a long history: reasonability. “A reasonable person, in English law, is a man on a Clapham omnibus with a rolled-up umbrella, reading the newspaper on the way to work,” the legal scholar Usha Ramanathan explained to me. This sounds like something out of Henry Fielding, but is in fact a test with enormous currency in the courts of Commonwealth countries around the world. (In Australia’s New South Wales, this hypothetical person is ‘the man on the Bondi tram’; in Hong Kong, he is ‘the man on the Shaukiwan Tram.’)

India’s judicial system, in effect, is guided by the sensibilities of a hypothetical eighteenth-century man from a commuter suburb of London. “In tort cases, ^[6] even a woman in the court of law is judged according to the standard of a reasonable man,” Ramanathan said. “A reasonable person would say: after 20 years, why did you have to come and talk about sexual harassment? What is it that is making you come out and say things like this? If you are going to be out of line like this, then you should be punished.”

All of this meant that Ramani and her legal team had a mountain to climb.

They had to upend the normative, outdated understanding of reasonableness. They had to draw the court’s attention to the progressive politics of a social moment, a moment that made it possible to resist the male gaze, even if only in limited online and offline spaces and even if it threatened the morality of the country’s majority.

To do this, they adopted an interesting legal strategy—it was to say to the prosecution that by weaponising the criminal defamation provision, you have actually turned the gun on yourself. A year since the judgement of the Rouse Avenue court, this is the story of what the Ramani defence was up against, and how they overcame it.

In reality, it was Ramani who faced the possibility of incarceration. All Akbar had to do in court was to show the loss of reputation the allegation had caused him. “But it’s not some fanciful loss, or a hypothetical loss, it must be an actual loss,” explained senior counsel Srihari Aney when I interviewed him last year.

Then again, this actual loss need not be monetary. Sometimes, a legal injury is enough to prove defamation. Aney brought up Ashby vs White, an English judgement, to drive home the point. In that case, the court held that a legal injury could be caused to a person’s legal right if he is barred from voting. In Akbar’s case, the argument could possibly be stretched to suggest that he lost votes as a result of his loss of reputation.

“A legal injury is relatively easier to prove,” Aney, a former advocate-general of the state of Maharashtra, explained. “In a defamation case, the assumption is that the complainant is an honourable man. That assumption would need to be upset by the defamatory statement.”

The classical jurisprudence on civil and criminal defamation, coming from Anglo-Saxon law, is tilted towards men, Aney said. “The basis of jurisprudence rests on the rights of men and not of women, who were treated as the man’s property, along with other chattel, just as slaves were in the old days. Therefore any offence against women was seen more in terms of how it affected the man concerned.”

The task of the accused in a case like this is quite clearly cut out. It is not enough for her to prove that her statement was true. She must also convince the court that the true statement was made in public interest. Ramani’s case was that her statement fell under, among others, the first exception to Section 499: “It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published.”

The sentence immediately after declares baldly: “Whether or not it is for public good is a question of fact.” “I spoke the truth in public interest,” Ramani contended, “and in the context of the #MeToo movement.”

But first, Ramani’s defence would have to contend with the idea of reputation. In court in August 2019, Ramani had unequivocally challenged Akbar’s supposed ‘good’ reputation on first principle itself: “It is false that Mr. Akbar is a perfect gentleman holding a good reputation in society,” she said in her defence. “Many women including myself who have worked with Mr. Akbar have had a different experience.”

“There is no tangible thing called reputation to be measured or proved,” Aney said. “It is the impression that people carry about you. It is the result of a lifetime of action. If somebody takes it away, you become a completely distorted version of your old self.”

In keeping with defamation law’s arrested development, it’s common to resort to old-fashioned poetry and Sanskrit verses. The Supreme Court’s judgement in Subramanian Swamy devoted almost four full pages to sub-sections titled “Vision of the Ancients” and “Thoughts of the creative writers and thinkers.” ^[8]

Geeta Luthra relied heavily on the idea of reputation as property, worth something in the professional and intellectual marketplace. ^[9] She argued at length about Akbar’s long journalistic and book-writing career. “It took him 45 years to build his reputation,” Luthra argued. “There was serious knowledge and serious grasp.” A reputation, she proclaimed, “is a day-by-day, minute-by-minute, brick-by-brick structure.”

“What does writing books and being a good editor have to do with reputation?” feminist and human rights lawyer Vrinda Grover asked me. Grover frequently represents victims of sexual abuse. “The construct of reputation in law is a male construct,” she said. “By raising complaints of sexual harassment, women are trying to point out that this construct of being a position of authority or power does not imply reputation.”

“Just because he was a good editor, does not mean he was not a sexual abuser,” Suparna Sharma said. A senior journalist, she worked with Akbar in the early 1990s and is now the resident editor of The Asian Age in Delhi. “In fact, there is a correlation here. The reputation is specific to his calibre as an editor. He drew power from this reputation and made it a cover.”

To prove that his reputation was stellar and hurt by Ramani’s tweet, Akbar put several friends and colleagues on the witness stand. These included tarot card reader and columnist Veenu Sandal, corporate communications executive Tapan Chaki, businessman Sunil Gujral and journalist Joyeeta Basu. Basu said that Akbar was a good boss, “a gentleman” and had never made her feel uncomfortable.

Luthra made an attempt to juxtapose Akbar’s “hard work” against what she called Ramani’s “lack of care and caution” before writing the tweets and articles. She told the court that Ramani jumped on the “bandwagon” of #MeToo, and tweeted “casually,” implying that tweeting about sexual harassment was a fad, and therefore frivolous.

Then there was the tricky matter of material proof. Akbar’s case rested on the premise that there was no proof of the incident Ramani had described, making her statements defamatory at face value.

In criminal trials, the evidence of a sole ‘interested’ witness should ideally be corroborated. There are obvious barriers to this in cases of sexual harassment. ^[10] “It’s difficult to show evidence in a court of law in cases of defamation arising from sexual harassment allegations,” Abhik Chimni told me. “Women have to come to the public and defend allegations such as ‘it was the way you looked at me,’ or ‘you showed me porn on the phone.’”

Ramani’s defence countered the case of Akbar’s reputation by showing that his behaviour with Ramani was not a one-off. Many women who tweeted or wrote about their personal experiences of Akbar’s misconduct expressed their willingness to testify in support of Ramani.

“I was amazed to see women of different ages, who worked in different years at different places, had such experiences with the same individual,” Shutapa Paul, founder-editor of a start-up called NewCrop, said. She said that she had rejected multiple advances by Akbar during her time at the Kolkata office of India Today in 2010. “Some of us did not know each other personally. Yet there was a sense of unfortunate belonging to each other.” (Journalists Namita Bhandare and Harinder Baweja attended every single court date, of which there were 50-odd. Ramani stayed with them every time she travelled to Delhi for the case. Some supporters such as Paul and the editor Meenal Baghel flew into Delhi on important court dates.)

The legal strategy was for Ramani to become a witness for her own defence. ^[11] Her friend Niloufer Venkatraman, who’d spoken to her before and after the job interview in Akbar’s hotel room, was brought in to corroborate her testimony.

These legal strategies have been used often in the past. But the context here was different. The case, though deeply traumatic for the victims, also provided a platform to narrate stories of both oppression and resistance. ^[12] Ramanathan told me about a Frederick Forsyth short story, illustrative in the circumstances. ‘Privilege’ is about a businessman who is livid about a press story that has alleged he is corrupt. After his lawyer explains that a libel suit will wipe him out, he comes up with a ploy that lands him in court to defend an assault case. He uses the opportunity to explain his stance, because anything said in court will be published and doesn’t carry the burden of substantiation.

“There are many things you can’t say outside the courtroom and get away with or without being charged with,” Ramanathan said. “But you can say it in the courtroom because you have the privilege of saying it in the court.”

“Witness should say she is a journalist. That is the end of the story,” Luthra argued. Rebecca John, Ramani’s counsel, had to urge the bench to prevent the prosecution from “rattling the witness.” They were entitled to their “generic comments” about Akbar’s reputation, John asked, “but I am not entitled to attack his reputation? Ms. Wahab is in the box. She is entitled to tell her story. Ms. Wahab is saying his reputation is not impeccable.”

Wahab had come a long way from her relatively conservative upbringing in Agra. She had moved to Delhi for work, and had never been able to tell her parents of her experience of sexual harassment.

“In Indian society, the need for parental approval at every stage of life is ingrained in our minds,” Wahab told me. “I was worried how my parents would perceive this,” she said. “Will it mean, I have to leave my job and come home, and get married as they want me to? Or can I make a petty compromise and keep quiet and continue having a career? These are small battles you have to fight at every level depending on what is at stake at that particular point of time.”

In court, Wahab described how she was sexually abused by Akbar in 1996-1997. In graphic detail, she recounted that Akbar would corner her in his room, forcibly touch and kiss her. ^[13]

Throughout this testimony, Luthra and her associates laughed and grinned. When confronted, they said they were sharing a private joke. The laughter was loudest at opportune moments: when Wahab described the size of Akbar’s room, when she spoke about how he grabbed her waist; when she recounted how the superior to whom she complained said that nothing could be done.

When Wahab told of quitting her job due to the harassment and catching a train to go back home, Luthra quipped to her associates: Train ka bogey number bhi bata do—why don’t you tell us the bogey number of the compartment, too?

The recorded testimony of the judicial archive does not capture the lived experience of this sort of public humiliation. ^[14] This was a defamation trial, but the questioning and undermining of the testimony of women victims resembled the kind often seen in rape trials, where a cross-examination transforms from a tool to ferret out the truth to an opportunity to re-victimise.

Courtroom humiliation is a popular theme in Hindi cinema. In Damini, for example, the defence counsel is out to prove that a witness’s testimony is inadmissible by portraying her as mentally unstable. In Pink, the lawyer brazenly asks the victim of molestation how long she has been soliciting as a prostitute.

In real life trials involving sexual assault, the very nature of the cross-examination provides a stage to perform judgemental ideas of women’s responses to sexual harassment. Leading questions are permitted and counsel can insist on yes-no responses from witnesses. This sort of theatre is commonly seen in rape trials. Akbar’s lawyers used the cross-examination process to deny the fact that the incident in the hotel room ever took place.

Exhibit 1, Luthra to Ramani: “I suggest to you that you did not make these allegations against the complainant prior to 2018 as no such incident took place.”

Exhibit 2: “I put to you that the reason you took up the job at The Asian Age was because no such interview in the circumstances alleged by you ever happened.”

The feminist sociologist Carol Smart wrote about the “binary logic” of the legal system: truth/untruth, guilt/innocence, consent/non-consent. This simplistic reasoning, Smart contended, is completely at odds to the “ambiguity” of rape cases.

This trial also employed the use of binary logic. Luthra’s insistence on documentary proof or physical evidence was framed in all-or-nothing terms: exactly what the adversarial litigation system demands, even in highly sensitive cases involving questions of power relations and career-threatening pressures.

#MeToo was a response to that imbalance: it became a movement because women spoke up in public as a last resort. The law offered little recourse for justice. “This is like saying one is justified in taking law into their own hands,” Luthra said when the fact of the law’s lacunae was brought up in court. “It is impermissible! How can anyone say this about India’s legal system and lose hope?”

Ramani insisted that she was speaking her truth, and Luthra asked for documentary evidence. “Just by saying it’s my truth, it’s my truth, doesn’t make it the truth. You have to give evidence,” Luthra argued. She demanded CCTV footage, a car parking slip, a taxi receipt, or even the name of the driver who escorted Ramani on the day of the incident. That expectation was ludicrous. That day was in mid-December 1993, more than a quarter of a century ago, when the world was a different place and discourse about workplace harassment was far more inaccessible and inconvenient than it is now.

By now, a criminal defamation trial had begun to resemble a sexual harassment hearing. But Ramani’s legal team had anticipated these attacks. Their counterpunch was working—Akbar’s vaunted reputation seemed to have a shaky foundation. 

“Do they think I am the accused?” Luthra complained bitterly. Counsel typically use first person when arguing for their client in court. “My izzat has been violated”—my honour. From the beginning, John was clear that their case was one of “affirmative defence.” It would not be based on denials. “Much has been made about the complainant’s eminence,” John argued. “The accused is no less eminent. The position she held is testament to her own eminence. Hard work is not something exclusive to the complainant. It is certainly not the parameter to judge the evidence. This is not a case about how hard he worked.”

Akbar’s “character witnesses” added nothing to the trial proceedings, John argued. “None of these witnesses have either met Ramani or have any personal knowledge about her. How can they contest her allegations?”

Fine journalistic and editing skills did not make Akbar special, the defence went on. “All the other editors I have worked with in the 25 years of being a journalist have writing skills, administrative skills, are exacting and demanding when it comes to copy, when it comes to schedule,” Ramani said. “They have all had an uncanny sense of what constitutes news. There is nothing special about the complainant.”

Ramani’s victory was shape-shifting. Ramanathan said that it has tilted the balance towards the woman’s point of view. “What this case has done is to turn the idea of a reasonable woman on its head and say, ‘No! You have to think about what a woman in that position did at that time when there was no law in her favour, when there was nowhere to go with a complaint like this, when all the power was vested on one side.’”

Victories for feminist jurisprudence have always come in fits and starts. It took 17 years from the Supreme Court’s announcement of the Vishaka Guidelines for Parliament to pass the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013. To move the needle for later generations, each has had to win uphill battles.

“At every stage, feminist jurisprudence has engendered law,” Grover said. “When Rupan Deol Bajaj filed a case against K.P.S. Gill, there were two legal issues that emerged.” IAS officer Bajaj had accused Gill, who was Director General of Punjab Police, of sexual harassment in 1988. “One was that the injury caused was minor. She was only patted on the backside at a party. The second argument was: what is this modesty that has been outraged? On both counts, the Supreme Court held in her favour because they reinterpreted the law from the perspective of the woman.”

The Rouse Avenue Court, already tiny, was packed on the day of the verdict, the doorway crammed with lawyers, live-tweeting journalists, and Ramani and Akbar’s well-wishers. Ominously, there were a number of female constables hovering near the courtroom. The tension could be sliced with a knife. Listeners exchanged confounded looks for a few minutes, as the magistrate read out the operative part of the order. When Ramani’s acquittal was finally spelt out, an audible sigh of relief emanated from her camp.

John was mobbed by reporters outside court. “This is an important feminist moment,” she told them. “For a court in a defamation case to strongly come out and say that I believe her. I am not sure the provision is being challenged the way we challenged it.”

Indeed, the part of the judgement where the court said it believed Ramani’s testimony could become the building block for a jurisprudence that is willing to accept women’s testimonies of sexual harassment. Magistrate Pandey acknowledged John’s contention that, at the time, there was a lack of grievance redressal mechanisms for addressing sexual harassment cases. ^[15]

Advocate Abhik Chimni stressed the giant leap the judgement could potentially represent. “The judgement creates a space where you do not have to show a 1980s style medical record to show that this sexual assault took place,” he said. Chimni was referring to a 1979 Supreme Court decision in which two policemen were acquitted of rape charges on the grounds that there were no visible marks on the body of the survivor, a teenaged Adivasi girl named Mathura. ^[16] “The victim is able to say, I felt uncomfortable and my feeling of discomfort is sexual. Therefore you cannot say it is defamatory.”

The court’s acquittal of Ramani could also have an important implication on the standard for evidence in sexual harassment cases. “This means that the courts are willing to adjudicate on a probability of sexual harassment,” Chimni said. “It means that the threshold of evidence in such cases has been diluted.” 

This is important in a society where the playing field remains gravely unlevelled. “We are still in the process of devising an excepted jurisprudence for women in these circumstances,” Aney, the senior advocate, told me. “There is absence of an established set of norms, which are being devised on a case to case basis. It will take a while for this jurisprudence to take some recognised form. And till then you will be left in these situations, where the court wonders whether evidence needs to be looked at in a classical way or in a different way.”

It does not mean that women are free from the risk of defamation complaints or suits if they speak up about sexual harassment in an open forum, Chimni clarified. “All this case has done is to go a step further and say that evidence does not have to be stringent.”

Despite being a judgement of a lower court, the Ramani decision is the law of the land, at least for now. Akbar’s appeal was admitted by the Delhi High Court last month. One of the appeal’s grounds is that the district court erred in “disregarding established law on criminal defamation” and adjudicated the matter as though it were a sexual harassment case.

But how is a respondent in a #MeToo-related criminal defamation case expected to conduct her defence without touching upon the fact of sexual harassment? By telling their stories in the witness box, the women shifted the focus away from the narrative of Akbar’s professional achievements.

Akbar got a taste of what women are subject to during rape trials: having their character and motives publicly questioned. “The trial has ended up becoming a judgement for a man. This is what happens in criminal cases of rape for women,” Ramanathan said. “They say that actually, it is the woman who is loose, she was there at this hour. For the first time, it is happening to a man. That’s all.”

Menaka Rao is an independent journalist and podcaster who writes on issues related to health and law. She is consulting editor with podcasting platform Suno India and tweets @menrao.