One year after India’s #MeToo campaign, difficulties of finding legal justice become clear

A year ago, in a television interview, actor Tanushree Dutta reiterated an allegation she had first made in 2008 against well-known actor Nana Patekar: that he had touched her inappropriately while practicing for a dance sequence.

In 2008, few had paid heed to her charges. But in 2018, she was heard. The reason: by then, thanks to the #MeToo campaign that began in the United States the previous year, women were speaking out on social media platforms and calling out powerful men. Echoes of that had just begun to be heard in India. Dutta’s story, in many ways, opened the floodgates of #MeToo in India.

However, though Dutta has been heard now, her complaint has not been heeded. In June, the police complaint she filed against Nana Patekar last year was closed due to lack of evidence. She plans to pursue the case in the Bombay High Court.

Perhaps one year is too short a time to assess the impact of a campaign that forced out the ugly reality of predatory men and the women they felt entitled to harass. But the closure of Dutta’s case, and several other related developments in different courts, points to the difficulties in proving sexual harassment through the justice system.

In fact, the very nature of the #MeToo campaign illustrates this challenge. It is probably the reason most women survivors preferred outing their harassers through social media rather than hoping the law would deliver justice.

Perpetrators continue untouched

This apart, one year later we must acknowledge that the#MeToo campaign has convincingly exposed the inequality of power in work situations that makes women vulnerable to sexual predators. It has shown how that very inequity deprives women of the confidence to face their harassers. It has also demonstrated that when a few women do find the courage to speak up, most often they are the ones who are victimised, disbelieved and forced out of jobs while the perpetrators continue untouched.

Also, thanks to the campaign, there is greater awareness of the law, the Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redressal) Act, 2013. Organisations are now under greater pressure to set up the mandated Internal Committee to address women’s complaints. Of course, the composition and functioning of these committees are still far from what is desired.

In the end, though, we have to ask whether the reality of sexual harassment is being acknowledged today? Has the campaign forced us to accept that sexual harassment is not just bad behaviour or an occasional slip of judgment? That it is a crime that diminishes and scars women and punishes them when they dare to confront the perpetrators?

The jury is still out on that. There is no doubt now that sexual harassment cannot be ignored, that women are determined to speak out and that they have built solidarities of support because of the campaign. A woman who wants to speak up today knows that she is not alone.

Yet, it is also becoming increasingly evident that it is not so easy disempowering the men accused of harassment or proving a case against them.

It is the women, particularly those who have had the courage to go public with their accusations, who are paying the price. Women like journalist Priya Ramani who has been charged with criminal defamation by former editor and now politician MJ Akbar.

Akbar’s case is still being heard. But on September 18, the Delhi High Court disposed of a suit filed by artist Subhodh Gupta against the Instagram page Scene and Herd.

Gupta alleged that the page had posted defamatory content against him last year when two women accused him, anonymously, of sexual harassment. He has asked for the pages to be taken down on Instagram, for all URLs linked to the page to be removed by Google and for a “token” amount of Rs 5 crores to be paid to him in damages by those who manage the page.

Scene and Herd publishes anonymous complaints of sexual harassment against people in the art world. Its home page states, “We choose anonymity.” Apart from Gupta, there are several other artists and men in the art world who have been named through these anonymous posts.

Court injunction

In Gupta’s case, the Delhi High Court has given an ex parte injunction restraining Scene and Herd from posting anything about Gupta until the next hearing, asking Google to take down all the URLs referring to the sexual harassment charges against Gupta and also asking Facebook, which owns Instagram, to do the same with the posts on Scene and Herd. Both companies have apparently agreed.

The judge, Rajiv Sahai Endlaw, stated in his order, “Prima facie, it appears that the allegation as made in the allegedly defamatory contents, cannot be permitted to be made in public domain/published without being backed by the legal recourse. The same if permitted is capable of mischief.”

More worrying is the judge’s order asking Facebook, to hand over to the court in a sealed envelope, “the particulars of the person/entity behind the Instagram account Herdsceneand.”

The challenges of anonymity

Although this is an interim injunction, it could have several repercussions. It cuts to the heart of the #MeToo campaign where the very fact of anonymity encouraged many women to come out with their stories. If the identity of the handlers of such pages is made public, the confidence of the women posting their accounts will be undermined.

One of the main criticisms of the #MeToo campaign was the anonymity of the accusers. Was it fair to name a perpetrator without the accuser making herself known? How would the former be able to defend himself?

The answer given was that the women survivors were vulnerable in the face of the men they were calling out. Even if at the end of the exercise there was no justice, the women felt it was important to publicly identify the men who had preyed on them for years.

Yet, the question remains: is publicly naming and shaming sexual predators the only, or the best way, to address the problem of sexual harassment.

Also, are the powerful men charged with sexual harassment acknowledging it as a crime? Or do they continue to brazen it out, to use their power to bully and diminish the women who have spoken out?

These questions become even more relevant in the face of the ease with which many of those who were named have managed to either clear their names, or be accepted back in jobs, or positions of authority, because, as Justice Endlaw said, the allegations were not “backed by the legal recourse”.

The problem, as women like Tanushree Dutta now know, is that even when you do turn to the law, you are at a disadvantage. Sexual harassment is probably one of the most difficult crimes to prove in court. Unless there is a paper trail or witnesses, it becomes one woman’s word against that of a man, who is usually someone with much greater power.

Furthermore, the law does not accept that it might take a woman years, even decades, to proceed against her harasser.

On September 16, the Bombay High Court set aside criminal proceedings against investor Mahesh Murthy, who had been accused by several women of sexual harassment. One of them filed a criminal complaint last year. But the court has dismissed it because of the lapse of time between when the alleged offence took place and the FIR.

Back in business

As for Bollywood, after the initial ripple triggered by Tanushree Dutta’s accusations, it appears to be business as usual. Even an actor generally deemed to be sympathetic to gender concerns, Aamir Khan, has justified working with Subhash Kapoor, a director accused of sexual harassment. In addition, Vikas Bahl, of Phantom films (that was dissolved shortly after the accusations against him) has been cleared by Reliance Entertainment of all charges after an internal inquiry and is back directing films.

The experience of Chinmayi Sirpada is especially discouraging. After she accused the well-known lyricist Vairamuthu of sexual harassment, she was denied work as a dubbing artist and few were willing to believe her. Vairamuthu, on the other hand, remains virtually unaffected and has been selected to write the lyrics for Mani Ratnam’s new film.

Sirpada tweeted her frustration when she wrote: “Let me reiterate this. Almost a year since my outing Vairamuthu as a molester. Not ONE Newspaper or Publication has asked him ANY questions. How do the MJ Akbar’s and Vairamuthus escape any and All questions, get mollycoddled and party with the powerful? None of it makes sense.”

In fact, it does make sense. While social media facilitated the outing of these men, the systems to actually address sexual harassment as a crime are still not working. Even the women who have found the courage to go public and turn to the law face an uphill battle.

The cloak of anonymity was believed to be the only option in such a situation. That is the reason so many women chose to use it. But even that could prove difficult given the Delhi High Court’s interim injunction.

The questions raised when the campaign began remain the same. How do we address sexual harassment? How do we give women the tools and the strength to fight it? How do we change male attitudes so that women are treated as equal human beings and not sexual prey? How do we dismantle entrenched patriarchal attitudes and structures?

It will take many more iterations of #MeToo before we get anywhere close to answering those questions.