#MeToo cases require more sensitive approach
The #MeToo movement that has gripped India since last year arose in response to the failure of institutionalised due process. It was found that repeatedly, the structures that had been put in place to deal with issues of sexual harassment were not fit for the purpose: Not only were they failing to deliver justice, but on many occasions, they could not even prevent survivors from being made the subject of reprisals by the powerful individuals that they had accused.
The #MeToo movement, therefore, had — and continues to have — some specific features. In particular, it is decentralised, outside the bounds of formal judicial and institutional processes, and — on many occasions — based upon anonymity. The reason for anonymity is obvious: Sexual harassment often takes place within institutions, and in the context of severe power differences. Personal identification, therefore, can — and often has — become the source of both institutional reprisals, as well as more informal methods of vengeance (such as doxxing, coordinated online attacks, and so on).
It is in this context that two recent orders of the Delhi High Court present a cause for concern. In Luv Ranjan v Midday Infomedia Ltd. (21 August 2019), a single-judge bench of the Delhi High Court, dealing with allegations of sexual harassment, on the basis of an anonymous complaint, injuncted a media house from “publishing/re-publishing anonymous complaints made against the plaintiff, or any articles or comments based thereupon, or upon the article published by the defendant no.1 on 12.10.2018.” In this brief order, however, the single judge made no attempt to engage with the question of why individuals feel the need to resort to anonymity. Instead, he issued a blanket ban on the publication of any anonymous complaints (no matter how detailed or well-founded), as well as any articles based upon them. In effect, therefore, the judge held that the price of speaking out about sexual harassment must be the revealing of one’s personal identity.
It should be immediately obvious that this is extremely problematic. In many ways, it is akin to forcing a whistleblower to reveal their identity: That would defeat the very purpose of the complaint in the first place, which can only be made under conditions of anonymity. People go anonymous because established norms of due process have failed them. To force them to reveal their identity without fixing the triggers for anonymity, therefore, only suppresses vulnerable individuals without solving any of the problems at stake.
It is also important to note that, true to its decentralised and informal character, the #MeToo movement has itself been working out ways of balancing the need for anonymity against the possibility of misuse (the concern animating the Delhi High Court in this case). This includes, for example, vetting of complaints before they are made public, insisting that complaints have at least some degree of specificity if they are anonymous (such as place of the incident and its nature), and so on. It bears repeating, of course, that #MeToo is not a legal proceeding, and no legal consequences are visited upon either party; for this reason, the standards evolved in the course of the movement will, of course, not be immediately translatable in legal terms.
Meanwhile, in a second case — from September 2019 — the Delhi High Court passed an equally troubling order, where (in similar proceedings) it directed Instagram to “furnish to this Court in a sealed envelope, the particulars of the person/entity behind the Instagram account ‘Herdsceneand’” (that was putting up anonymous accounts of sexual harassment). This order went one step beyond: It didn’t merely injunct anonymous accounts, but actually sought disclosure of identity, through the judicial process (thus affecting, among other things, the right to privacy).
What these two orders reveal is that the judicial process is too blunt an instrument to address the causes that have triggered the #MeToo movement, and the specific form that it has taken. In particular, judges ought to exhibit more sensitivity and a deeper understanding of power differences in the context of sexual harassment cases, and when these cases come before courts, to fashion remedies that are responsive to this context. Orders such as those of the Delhi High Court, however, make matters worse.
Gautam Bhatia is a Delhi-based advocate
The views expressed are personal