Wednesday’s verdict in the MJ Akbar defamation case goes far beyond gender justice. Its significance is not just that it recognises the history and dynamics of inequality, which it does very eloquently, but it also understands ‘expression’ as a mode of redressal.
Articulation by victims of injustice, or even perceived injustice, against structures of power—whether as institutions or individuals—cannot be viewed through the narrow lens of ‘reputation’. The verdict is also important because it comes at a time when there is a general intolerance of any articulation of discomfiting truths.
Its import for gender is immense and it has been rightly commended on this score. Yet, in understanding the exposure of those in high places, as a means of calling power to account, the verdict has universalised its imperatives.
By viewing public interest as inherent in this articulation against degrading treatment, the magistrate’s order of acquittal is a purposive interpretation of “expression”. The judgment reflects upon how power has worked through the ages to protect as “rights” those things that are actually “wrong”. Lack of remedy against harassment at the workplace at that time is directly relevant, as unerringly grasped by the judge.
Defamation is always a contest between reputation and expression. Truth and public good is the first defence to a charge of defamation. To recognise truth and public interest in an exposure geared towards dignity, and against abuse of power, is to capture the essence of free speech. Therefore, this judgment interprets the terms ‘truth’ and ‘public interest’ integrally.
Strictly, this is not precedent as it is a magistrate’s order and not that of a court of record. Yet, this kind of an analysis and understanding has entered the stream of judicial decision-making, which will have its own impact. For, this verdict has introduced that extra bit of positive energy into the process.
A young magistrate at the start of his career has located justice, expression, injustice and reputation in a context. It is really a remarkable achievement both for the judge and for the lawyer who made this possible.
It is inapposite to see it as vindication of gender justice alone. Public interest is a meaningful notion that includes the need to express and the need for society to know. You cannot keep these things under cover. The judgement reveals an understanding of all of these processes.
It is not as though this country has not seen great orders or innovative ideas of justice from the lowest courts to the highest courts but it is definitely like a breath of fresh air and every time it happens, one is happy and pleasantly surprised.
As I said, defamation is related to expression, and the judgement has constructed a call for justice as legitimate expression. Further, exposure itself is a call for justice. I am paraphrasing the judgment. But these are the simple truths that it is premised upon.
It is not saying that reputation itself is not entitled to protection. Instead, it points out that when a woman articulates an injustice and stands by her statement and is willing to make good her case by evidence then, a bare claim to reputation is not justified. A powerful wrongdoer has no claim to reputation as a shroud for his disgraceful conduct. There are power relations embedded even in a claim to reputation. Someone not in a position of power may not be able to speak out about it just then.
The judgement recognises that social mores are changing and attempts to locate the defences and the offences in a changed world view. This is why I say it is remarkable.
The writer is a Delhi-based lawyer and an author.
As told to Shalini Umachandran