Thread by @barandbench

Webinar on “Criminal Defamation, Free Speech and Right to Equality” by the MNLU Mumbai Centre for Research in Criminal Justice will begin shortly.

Senior Advocate Rebecca John will be the speaker at the event.

Follow the thread for live updates.

#FreeSpeech #equality #Webinar

Session begins.

Joint Convener of Centre for Research in Criminal Justice Utsav Saxena welcomes the participants.

Prof. (Dr.) Anil G Variath, I/C Registrar of MNLU, Mumbai gives the welcome address.

Prof. (Dr.) Dilip Ukey, Vice Chancellor of MNLU, Mumbai gives the presidential address.

Gives a brief introduction to the Centre for Research in Criminal Justice.

Dr. Ukey gives an introduction to the topic for today’s discussion - Criminal Defamation, Free Speech and Right to Equality.

#FreeSpeech #equality

Dr. Ukey: There is differences between the 5th Amendment of US Constitution and Article 19(1)(a) of the Indian Constitution.
Firstly, the term expression in Art 19 is wider.
Secondly Art 19 has reasonable restrictions, and those are specifically provided.

#FreeSpeech #Equality

Dr. Ukey: In US, the reasonable restrictions had to be determined by the Courts over there.

Today’s programme is of greater significance especially when we are discussing criminal defamation which of course Sr Adv Rebecca John will enlighten us on.

#FreeSpeech #equality

Senior Advocate Rebecca John begins her address.

#FreeSpeech #equality

Sr Adv John: What is criminal defamation?
Sec 499 of IPC defines criminal defamation. Words are spoken, either to be read or seen and these words are in the nature of imputation (Concerning a person, needing to harm the reputation of the person).

#FreeSpeech #equality

Sr Adv John: There are words seen or heard, there is a need to harm, and then the reputation of such person.

If these are satisfied then such person may invoke a case for criminal defamation against the person making imputation.

#FreeSpeech #equality

Sr Adv John: The case is non-cognizable, bailable offence. As we know there are warrant cases and summons cases.
One of the pre-requisite for proceeding under S.499 is that a complaint has to be filed before the Magistrate. So no FIR has to be filed.

#FreeSpeech #equality

Sr Adv John: If the magistrate finds there are no grounds, then the complaint is dismissed. If grounds are found, through the witnesses, etc, then summons are issued.

#FreeSpeech #equality

Sr Adv John: Section 499 has set of explanations.

#FreeSpeech #equality

Sr Adv John: When we challenge criminal defamation proceedings, it is important for me to show that the defamation was in the estimation of others.
So I have to bring witnesses to show that the imputation has lowered my reputation in their opinion.

#FreeSpeech #equality

Sr Adv John: As soon as accused appears before the court the substance of the accusation is read out to the person to know if he pleads guilty or not.

#FreeSpeech #equality

Sr Adv John: He is also asked if he has a defence to lead.
So it is a two fold task that the magistrate has to fulfill.
And both these must be answered with a certain degree of robustness.

#FreeSpeech #equality

Sr Adv John: I will discuss the sections in context of the #PriyaRamani trial.

#FreeSpeech #equality #MeToo

Sr Adv John: #PriyaRamani was prosecuted for 3 articles and a tweet at the height of the #MeToo movement.

Many women took to #Twitter to speak against their bosses.

John gives a brief background on the facts that led to initiating defamation proceedings against #PriyaRamani

Sr Adv John: After Ramani was summoned, the Magistrate asked her if she pleaded guilty and her defence. She pleaded not guilty and she took the statutory defences available under the Sec 499. She pleaded the defence of truth.

#FreeSpeech #equality

Sr Adv John: These exceptions give a complete defence to the accused.

#FreeSpeech #equality

Sr Adv John: She pleaded the first, third and ninth exception.

#FreeSpeech #equality #MeToo

Sr Adv John: When you plead exception, the onus shifts to the side pleading exception.

#FreeSpeech #Equality #MeToo

Sr Adv John reads out Supreme Court judgment in Harbhajan Singh v. State of Punjab which she had pleaded on behalf of Ramani, that even when you plead exception, the law says that the burden on the accused person is to cross the test of preponderance and probability.

#MeToo

Sr Adv John: The proof beyond reasonable doubt remains with prosecution.

#FreeSpeech #Equality #MeToo

Sr Adv John: Once she plead her exceptions, she only had to comply with the test of preponderance.
After the exceptions were pleaded, she had to give details to substantiate her defence.

#FreeSpeech #Equality #MeToo

Sr Adv John: #PriyaRamani came as defence in her own case. She testified on oath as witness, subjected herself to cross-examination, which the accused is otherwise not able to produce.

#FreeSpeech #Equality #MeToo

Sr Adv John: Witness #2 was a friend in whom #PriyaRamani had confided.
There could be an argument that this disclosure was an afterthought.
They were blessed with another corroborative evidence.

#FreeSpeech #Equality #MeToo

Sr Adv John: A few hours after #PriyaRamani tweeted in 2018, she received a WhatsApp message from Witness #2 congratulating her and reminding her that she had confided in her.

#FreeSpeech #Equality #MeToo

Sr Adv John: So the electronic evidence was checked, the message was shown in original and we had a powerful corroborative evidence.

#FreeSpeech #Equality #MeToo

Sr Adv John states that there is another aspect to defamation wherein the complainant is a man of a stellar reputation.

To that she stated that they had a woman, who bravely came out against the accused, who had survived like #PriyaRamani.

#FreeSpeech #Equality #MeToo

Sr Adv John speaks on why #MeToo get the kind of traction that they got in India and in the US.

Sr Adv John: One of the reason is because it gave women a safe platform to call out their male bosses without accessing the legal system which had failed them.

#FreeSpeech #MeToo

Sr Adv John: Vishakha as an iconic judgment was passed by the #SupremeCourt because of one woman, Bhanwari Devi. They want equality at workplace, safety at workplace.

#FreeSpeech #Equality #MeToo

Sr Adv John shares what the witnesses testified during the Ramani trial.

#FreeSpeech #Equality #MeToo

Sr Adv John reads out Ramani’s witness.

Ramani had opened up about her experience and truth in public interest. She expressed her disappointment that women who had suffered sexual harassment had to undergo criminal proceedings against them.

#FreeSpeech #Equality #MeToo

Ramani had also stated that she made disclosures in public interest in the hope that more women like her who believe in the pursuit of silence would speak up.

#FreeSpeech #Equality #MeToo

#PriyaRamani defence statement: I have nothing to gain from this case. I can live my life in Bangalore in silence, but that will not be the right thing to do.

#FreeSpeech #Equality #MeToo

Sr Adv John also read out another witness who had suffered from sexual harassment.

Sr Adv John: When you look at criminal defamation and not from a simplistic prism that imputation causes harm to reputation.

#FreeSpeech #Equality #MeToo

Sr Adv John: what about the harm caused to women and their reputation? That comes out 20 years later...
She took the stand, she gave details, hence we could take a stand and take defence.

#FreeSpeech #Equality #MeToo

Sr Adv John: We could bring another witness which could buttress the defence of the stellar reputation of the accused.

#FreeSpeech #Equality #MeToo

Sr Adv John: Many countries across the world have done away with criminal defamation. Civil remains. Is it time for us to revisit Subramanium judgment? IS it time to revisit the criminal defamation provision? To penalise someone for speaking the truth?

#FreeSpeech #MeToo

Sr Adv John: You will ofcourse look at the Ramani trial from the Vishakha judgment point of view.

The judgment specified for guidelines to be followed against sexual harassment. Fundamental right to trade and work depends on safe work environment.

#FreeSpeech #Equality #MeToo

Sr Adv John: right to work with dignity and safe working environment was recognised as a fundamental right.

And here a woman was trying to speak out against an incident two years before Vishakha. Could she have done that?

#FreeSpeech #Equality #MeToo

Sr Adv John reads out the guidelines which stated that organisations were to draft their own guidelines.

Sr Adv John: Even the SC did not comply with the guidelines until there was a case before them seeking for guidelines.

#FreeSpeech #Equality #MeToo

Sr Adv John states that survivors of rape are asked very inappropriate questions, which leads them to not come to court.

She reads out incidents of cross-questioning carried out in courts.

#FreeSpeech #Equality #MeToo

Sr Adv John: The use of law to stop people from speaking out against injustice is called a slap-suit.
Even though India has no such law, this incident has been recorded in judgments.

#FreeSpeech #Equality #MeToo

Sr Adv John: The cross suits are used to silence, censor and intimidate the defendant. It could lead to mounting fees and exhaust the defendant

#FreeSpeech #Equality #MeToo

Sr Adv John concludes her submissions by reading out from the #PriyaRamani judgment.

#FreeSpeech #Equality #MeToo

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Sr Adv John concludes by stating that as a country with an excellent Constitution, with right to free speech, criminal defamation should be abolished.

#FreeSpeech #Equality #MeToo

Sr Adv John is asked a question by a participant as to what should be done with a false charge against someone?

Sr Adv John: Most criminal cases are initiated by the State against the accused. Why are there no criminal defamation action against the State?

#FreeSpeech #MeToo

Sr Adv John: Why is there no action against the State when they invoke false UAPA charges against people?
Why is it that there are more case against women of false charges than against men?

#FreeSpeech #Equality #MeToo

Sr Adv John: I am not saying women do not make false accusations, but there are systems which can determine the falsity and then a serious observation can be made against the person.

#FreeSpeech #Equality #MeToo

Sr Adv John is asked if sexual harassment should be tried by jury, since the effect of the cases will be in public interest.

Sr Adv John: Well we have done away with jury trial and no I do not think so.

#FreeSpeech #Equality #MeToo

Utsav Saxena gives the vote of thanks.