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Mapping and negotiating power

Uncuff India Episode 10: Dimensions of conflict and peace: visioning a utopian world

Uncuff India Episode 9: Civic space and dissent: A pathway to social justice

Criminal Defamation and the Valley of Woes it Resides in


In the Indian Penal Code, 1860, a veritable tome that makes for the most literal symbol of justice served, the provisions relating to criminal defamation sit cosily between sections pertaining to cruelty meted out to a wife by her husband, and criminal intimidation. Section 499 of the Indian Penal Code criminalises speech that is purported to vilify or malign the reputation of any person. Section 500 outlines the punishment for criminal defamation, which holds a person liable for imprisonment up to two years (with or without a fine).

Defamation in essence is a private wrong — done to the antagonization of a particular individual. Indian law recognizes its private nature as a civil wrong, or a tortious act, as is commonly bracketed in. The institution of criminal defamation however, is a by-product of colonial rule in India which provides for jail time for an offence which is not at its crux, criminal. There has been considerable clamour surrounding its omission as a criminal offence.

What (Doesn’t) Make Defamation Criminal

The law of defamation rests on precarious footing. It originates from the early religious authority of the Church in Europe which considered defamation a sin as grave as that of sexual immorality. As the power of the Church dwindled, secular courts continued to treat criminal defamation with the same trepidation as that of their predecessors. Several note that the criminal defamation law as it stands today is a product of patriarchy, fostered by aggressive, toxic masculinity. This is relevant when we consider the catalyst of the modern day movement against criminal defamation.

Interestingly though, on a purely technical scale defamation is not criminal at its core. The question pushing any movement against criminal defamation ask this: how can a wrong which is not inherently criminal, have entirely criminal consequences as severe as criminal defamation does? Consider for a split second, the primary defence to a criminal defamation action: truth. However the defence of truth is no good, in and of itself. A defamatory act has to be both truthful and in public interest and necessarily for public welfare. The defence is a vague fusion of truth and public interest. What this ambiguity does, is give corporations, authorities, government bodies and what-have-you, enough leeway to legally prosecute any of their detractors– and in most cases, get away with it.

Of course, civil action for defamation is not without its constraints. But even without turning to the minefield of questioning if defamation even needs to be some kind of legal wrong, its criminalization is definitely problematic. Across the world, criminal defamation law is proving to be problematic. A criminal defamation suit does more to harass than it does to protect. In the USA, Louisiana’s criminal-libel law has been declared unconstitutional, in part because it restricted the use of truth as a defense and did not require proof that forbidden statements were uttered with malice. In December 2018, the ACLU (American Civil Liberties Union) undertook such a criminal defamation lawsuit, which they hope to use as a test-case to abolish all criminal defamation laws across the country.  A substantial portion of the ACLU’s argument in the context of American law is also pretty relevant to India. For instance, they find the statute determining what is defamatory to be impermissibly vague — something which is also characteristic of the Indian approach. By extension, it argues that the line between protected speech and defamation is too obscure in civil law claims themselves, that a criminal action is entirely inappropriate keeping in my mind how arbitrary and selective enforcement can be.

Catalyst to Criminal Defamation

While criminal defamation has been around for a long time, it’s recently come to the forefront in light of the #MeToo wave that’s caught the country by storm. Instances of outed perpetrators using the criminal defamation law to slam down on the women who have accused them of sexual harassment and sexual impropriety are rampant. Union Minister M. J. Akbar launched a criminal defamation suit against, Priya Ramani, who accused him of sexual assault. Veteran actor Alok Nath’s wife has initiated a criminal defamation lawsuit against writer-director, Vinita Nanda who had accused Alok Nath of rape.

One article aptly points out the incredulity of the Indian criminal justice system in this respect: 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. That criminal defamation cannot be used to silence and stifle is one argument, but its usage to maliciously impede legal recourse after individuals have suffered the sort of fundamental, personal harm that sexual harassment brings, is a different matter entirely.

The Lack of a Constitutional Case for Criminal Defamation

Admittedly, this aspect of the piece is a little more technical than needs to be for the purposes of defending any stance against criminal defamation. However it is important to consider that criminal defamation actions often do not fulfil the most basic and fundamental of constitutional tests to be considered legitimate and lawful actions.

The Supreme Court of India has stood by the constitutional validity of Section 499 and has not found the need to ensure any further checks and balances to prevent abuse. And yet, the Constitution of India permits the right to freedom of speech and expression to be curtailed only by a reasonable restriction. Reasonableness has to be proportionate and essential- in that it must be absolutely necessary to restrict a right to the extent that is done, and that there must be no alternative mechanisms which can also achieve the same result without stepping on such freedom. Criminal defamation fulfills neither category. Here, there is a disproportionate repercussion of the exercise of free speech, without any sort of essentiality being shown to the ‘crime’.

The Indian laws per se are convoluted, especially when it comes to criminal defamation. However a push for change in both the legislations and in the judicial precedent is necessary. Freedom of speech must exist without the fear of prosecution, without the threat of disproportionate criminal action and without unnecessary legal riders. We might look at criminal defamation through the lens of #MeToo, or from a purely academic context. The underlying stance however, invariably points to its omission. And as such, criminal defamation and the valley of woes it resides in, must go.

Priyanshi Vakharia is the Program Officer, Feminist Justice at One Future Collective.

Featured image: Riki Tsuji, Naptime Comics

Mapping and negotiating power

Uncuff India Episode 10: Dimensions of conflict and peace: visioning a utopian world

Uncuff India Episode 9: Civic space and dissent: A pathway to social justice

Pornography and the Freedom of Expression


With the growth of censorship by the Indian State and more specifically Indian society, pornography has become a subject of conversation. Can it be used in place of sex education? Does the porn industry act as a cover for sex workers? Is it truly a space for free thought and art? In this article, we will be specifically looking at it as a form of sexual expression and also, the idea of censorship.

Before delving into pornography as a form of sexual expression, we must look at its impact on society, and especially women. According to Judith Butler, pornography is the depiction of all heterosexual relations in which all women are assumed to be only in coercive interactions with men. This concept is known as ‘Heterosexual Matrix’. The more widely known idea about pornography and society is ‘hegemonic masculinity’.

What is hegemonic masculinity? In gender studies, hegemonic masculinity is part of R. W. Connell’s gender order theory, which looks at and recognizes multiple forms of masculinity that vary across time, culture and the individual. Hegemonic masculinity is defined as a practice that legitimizes men’s dominant position in society and justifies the subordination of women and other marginalized ways of being a man. With pornography, this phenomenon can be rampantly seen especially in those films that fall under the purview of “free pornography”. These movies tend to fall under themes and sub-themes that end up promoting a toxic view of copulation. A power-relation, depicting Butler’s ideas of ‘Heterosexual Matrix’, is created.

In India, pornography is more than just hegemonic masculinity. From the classical texts to the modern internet, pornography, or rather, types of pornography have been used as a form of sexual expression, teaching patriarchal behaviour and as a form of sex education. However, it is not just limited to that. With the idea of pornography, comes the idea of censorship. One cannot be spoken about without the other. Censorship, in its very roots, comes from the idea of limiting freedom of expression. Hegemonic masculinity cannot be seen as a separate entity from censorship. It is rather just a cause of it.

But how does censorship relate to the idea of the heterosexual matrix? The misrepresented power relation is used as one of the reasons why pornography should be banned. Many of those who support the banning of pornography, use this power relation to justify the ban. According to them, this power relation plays its role in society by creating an imbalance between the desires and choices of men and women. This manifestation of this imbalance occurs in various ways. For example, the idea of consent is non-apparent in most of these pornographic films.

This offers a skewed perception of pleasure and sex, thereby teaching the youth that giving consent and in turn accepting consent is a choice, rather than a requirement. One of the most apparent (albeit extreme) manifestations of the prevalent culture of pornography is the act of rape. Many supporters of a ban on pornographic sites believe that by banning porn they are helping society as pornography results in a rise of rape statistics. However, this reasoning is used and held by only a small part of the anti-legalization sector of Indian society. Most of this section use reasons such as “it teaches the youth that sex is okay!” (god forbid) or the usual, “this goes against Indian culture”. Despite the legitimate concerns of the smaller section of the anti-legalization sector, the majority supports the ban for purposes that limit freedom of expression, and most importantly, sexual expression.

Censorship has always been used as a tool for oppression, and by banning pornography, it is once again being used as a tool, but this time, for sexual oppression. Instead of banning pornographic films, there should be an active change towards the rise of sex education and towards teaching the mass that consent a need rather than an option.

To say however, that no fault can be placed on the porn industry, would be a faulty argument. There must be an active change in the industry to create an art form that is equal, liberal, and shows the active need to change how we look at, perceive, and process sexual desire and need. In an interview with The Tab, Erika Lust, a “feminist porn director”, says that “there is much that is wrong with the porn industry – chiefly that it is misogynistic, exploitative and can be dangerous. It attracts vulnerable women (and men), some of whom are ruined by it.”

Filmmakers like Erika Lust are trying to change the hegemonic masculine form of pornography by normalizing the idea of consent, rather than the idea of non-consent being “sexy”. In the same interview, she talks about how she creates feminist porn.

“Feminist porn is explicit films made by people who have a problem with the mainstream porn industry and its way of making film.” Feminist porn aims to show women and men as sexual equals, and that sex is something you do together, not just something that a man does to a woman, and something women do for men.

“One common complaint about mainstream pornography is that it shows women as mere objects without feelings, power or desire of their own,” she continues, “catering to the fantasies of men. There is so much porn where women are insulted, humiliated and even assaulted. A lot of porn is misogynistic and proud of it, showing men as aggressive sex robots – which isn’t very healthy either.”

“It’s fully possible for a film to be both sexually explicit and present people as human beings who deserve to be treated with respect, even when they’re naked. It has nothing to do with what kind of sex is shown – it’s all about how the films are made.”

Pornography, that is, adult and consensual pornography is a form of liberation, and to say otherwise, would be to negate the impact it has had on our society. That being said, it not that all porn is a form of liberation. There are enough and more depictions in the porn industry that show women and men as violent, aggressive individuals, where sex is nothing more than an act depicting power or dominance of one sex over the other. Banning pornography will not result in any change in society. Rather, it is a better option to increase sex education, and to change the form of pornography that is currently circulated in the mainstream industry. Censorship has never helped society, but liberation and expression has. The porn industry must change, but so must our society. Patriarchal notions of desire, sex, women and life must be put to rest, and the freedom of expression is integral to this change.

Samragni Dasgupta is the Outreach Officer, Bangalore at One Future Collective.

Featured image: iPleaders

Mapping and negotiating power

Uncuff India Episode 10: Dimensions of conflict and peace: visioning a utopian world

Uncuff India Episode 9: Civic space and dissent: A pathway to social justice