TikTok and the Perils of a Policing Policy

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At the outset, let me clarify that I have no personal experience with any of the technological illustrations I’m about to use in the following piece. I stay far away from mobile games (mostly because I’m terrible at them) but I do defend the right of the more competent, to have them and unabashedly play them. This article is not a case of sour grapes; it is however an observing of sorts of a rather troubling pattern of policing that percolates down to something as seemingly trivial as mobile phone games. Continue reading “TikTok and the Perils of a Policing Policy”

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Criminal Defamation and the Valley of Woes it Resides in

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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

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An Introduction to The Women’s Sexual, Reproductive, and Menstrual Rights Bill, 2018

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Parliamentarian Shashi Tharoor’s 2018 bill on the restoration of the sexual, reproductive and menstrual rights of women creates a space at the table for a conversation which has so far only been confined to the more liberal mindsets of the country. By putting forth a bill which crystallizes women’s agency and independence in a positive sense, the questions plaguing women’s emancipation shift from an abstract sort of in-the-air discussion about their theoretical rights, and instead focus on the realities of making these rights available to women across social and economic strata. The Women’s Sexual, Reproductive, and Menstrual Rights Bill, 2018, (‘Bill’) is by no means the one stop solution to tackling women’s rights issues – but it’s definitely a good place to initiate a conversation.

What does the Bill say?

In terms of sexual rights, the Bill grants women autonomy over their sexual rights and aims to ensure that consent is not presumed where it does not exist. The motive as Mr. Tharoor explains is to shift from a ‘no-means-no’ paradigm of consent to a much more explicit ‘yes-means-yes’ paradigm of consent, where consent is encouraged to be expressly articulated as opposed to being tacitly implied to. The Bill aims to accomplish this by criminalizing marital rape, as well as by prohibiting the use of unrelated facts such as a woman’s ethnicity, education, profession, clothing preference, social circle, personal opinion, past sexual conduct or any other related grounds in presuming her sexual consent.

The Bill mandates free access to sanitary pads in government schools and in public offices for all women. In doing so, it acknowledges that menstruation is an essential involuntary bodily function which cannot be stigmatized. It further grants a woman, irrespective of her marital status, the right to terminate a pregnancy except in cases of female foeticide or where the foetus is viable. Child survivors of rape have been given the absolute right to terminate pregnancy unless a risk to life is involved. In that regard, the Bill proposes amendments in two respects- one, by deleting Exception 2 to Section 375 of the Indian Penal Code, 1860, which refers to the legality of marital rape, and two, by providing for menstrual equity under The Medical Termination of Pregnancy Act, 1971.

Is the Bill truly groundbreaking?

Unfortunately not. Does that mean the Bill in itself is redundant? Not at all.

The biggest value addition of the Bill is in how it has created a conversation about the realities of transforming women’s rights into action. Consider the marital rape exception, which has for long been clamoured against to be new for most of the general public. And yet, the omission of an archaic provision through a Lok Sabha Bill does not imply that the Parliament is willing to legislate and remove the provision from the law. Certainly not, when vast majorities of rural voter bases do not consider marital rape, rape at all. There is considerable doubt as to how receptive Parliament as a whole might be, with a general election looming around the corner.

Similarly, the Bill provides for the availability of sanitary pads at government schools, and at premises of public authority free of cost. This is to be channeled from about 100 crores per annum out of the Consolidated Fund of India. The Bill also suggests amending the Right of Children to Free and Compulsory Education Act, 2009 and recognizing every public authority as defined under the Right to Information Act, 2005, in order to better align itself with its objectives. And yet the general lump sum gives rise to the regular tangents of corruption, red-tapism and a general apprehension that it is unlikely that the funds (in their entirety) will reach the persons so designed to reach.

In terms of menstrual sanitation specifically, are there other challenges the Bill has to tackle?

Menstrual hygiene is a tricky issue to tackle and that is notwithstanding the traditional stigmatization and oppressive practices that are already institutionalized within society. From an entirely personal viewpoint, it seems hasty and imprudent to tackle an aspect of menstrual hygiene without addressing the Gordian knot that is the menstrual hygiene quandary in India. Menstrual hygiene has faced more than its share of stigmatization – a proposal that rests on the full and free distribution of sanitary pads is not without its concerns.

Menstrual sanitation has been conceived of on the symbolic identity of the sanitary pad alone. And anyone who buys a six-month stock for regular use, can attest to what an expensive, uncomfortable and inconvenient affair it is. Sanitary pads (at least, the packaged, company processed ones most of us buy) are costly, difficult to dispose and are absolutely non-reusable. The Bill thus far fails to recognize that there are other sanitation options when it comes to menstruation — menstrual cups, cotton pads, even the trusty tampon must be given as choices of menstrual hygiene products, if the issue is to be appropriately addressed. Women in rural and urban areas alike cannot have true agency over their sexual rights if they do not have any access to choices, and the knowledge and freedom to exercise those choices. Furthermore, the bulk supply of sanitary napkins can lead to poorer quality products as a result of a quick-fix-resort to toxic chemicals and cheaper raw materials for a easily reproducible product. Plastic-heavy and chemically-laden sanitary napkins are a sanitation nightmare not only because of the health risk they cause, but also because they make safe disposal a lot more difficult. As a result, quality control then becomes an important aspect for the Bill to address. The Bill has to lay down a mechanism, especially in light of its free distribution of sanitary menstrual products scheme that there is greater information disclosure and ethical compliance by companies making these products.

Conclusion

The process of making space for women’s agency and autonomy is long and arduous. It is not to be easily tackled in the scope of a single Bill — to be fair, it cannot be. The idea is to work together and get this right the first time so that women despite their socioeconomic backgrounds have access to choice, sanitation and safety. And that is when we can hope to have the kind of autonomy the Bill purports to provide.

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

Featured image: Time

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