#MeToo: Can Perpetrators of Old Abuse Cases be Held to Account?
Could MJ Akbar et al be prosecuted for actions from 20 years ago? Were their actions workplace sexual harassment?
The #MeToo movement has borne witness to the outing of men of all ages, industries, and status for sexual harassment and abuse. The accounts of the survivors have been powerful, harrowing, demonstrating the myriad ways in which these violations have impacted their lives, and show us just how systemic they are in our society today.
Key to the systemic nature of the harassment has been the way in which powerful and influential men committed the gravest transgressions, and yet faced no consequences. It is only now, in some cases more than twenty years after the events, that the survivors have been able to come forward with allegations against the MJ Akbars and the Alok Naths of this world.
The intervening period has done nothing to lessen the power of these accounts, and those accused in them have been severely denounced. But is the court of public opinion the only place where these men can be held to account? Or can there be any action under the law against them as well?
Punishment Under Criminal Law?
There has been a wide spectrum of violations by the alleged perpetrators, ranging from workplace harassment to rape. All speak to the enabling culture that pervades society today and all of these things need to be called out. Unfortunately, the nature of the violations will make a difference to whether or not criminal action will be possible against the perpetrators.
This is because India has a limitation period for the time within which complaints about certain criminal offences can be taken cognisance of (the next stage after filing a complaint). Under Section 468 of the Code of Criminal Procedure (CrPC), the limitation periods are as follows:
- If the offence is punishable with only a fine: 6 months;
- If the offence is punishable with maximum imprisonment of one year: 1 year;
- If the offence is punishable with 1-3 years’ imprisonment: 3 years;
- If the offence is punishable with more than three years’ imprisonment: NO LIMITATION
This means that if a complaint is made which alleges rape or grievous hurt (the punishment for which even pre-2013 was over 3 years), the courts can still take cognisance of these. This would mean, for instance, that Vinta Nanda could still file an FIR against Alok Nath for rape, and he could then be prosecuted.
On the other hand, the allegations against MJ Akbar at this time (including Ghazala Wahab’s powerful account in The Wire) appear to make out cases which which would fall within:
- Section 354 of the IPC – ‘Assault or criminal force to woman to outrage her modesty’; or
- Section 509 of the IPC - ‘Word, gesture or act intended to insult the modesty of a woman’.
Since the alleged offences took place before 2013, the maximum punishments for these offences would be 2 years and 1 year respectively. Which would mean the limitation period for them was 3 years from the date of the incidents. Since most of the incidents took place well over three years from the current date, this would appear to mean he cannot be held accountable in the criminal courts for these actions.
Is there no possibility to extend the limitation period keeping in mind the difficulties women have in reporting crimes like this?
Fortunately, the law recognises that these limitation periods may need to be extended. Under Section 473 of the CrPC, a court can take cognisance of an offence after the expiry of the limitation period if “it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.” [emphasis supplied]
According to Supreme Court advocate Karuna Nundy, a case can be made to extend the limitation period even for cases like Ghazala Wahab’s, which took place 21 years ago, given that “women complain years later for very good reason, usually lack of support within and outside the justice system, as well as a justified fear of backlash, violence and discrimination.”
The influence of someone like MJ Akbar in the media and his subsequent entry into politics (he remains a Minister of State even now despite the slate of allegations) could be strong grounds to argue why the survivors have been unable to come forward till now. In such circumstances, waiving the limitation period would not be unreasonable in such cases, and there is an argument to be made that not doing so would be unjust.
As Nundy points out,
“Section 473 is the space, constitutional and feminist lawyering needs to make it a reality in the lived jurisprudence of sexual assault. Acknowledgment of the realities of why women are unable to report will bring justice in more cases.”
This position is not certain at this point, but at the very least the possibility that this can be argued should ensure survivors are not discouraged from bringing up cases which are more than three years old.
Should Action Have Been Taken Against Such Perpetrators Under Laws on Sexual Harassment at the Workplace?
The allegations against Akbar at this time all relate to the context of the workplace. Multiple women have alleged harassment while they were employees, including non-consensual kissing, implicit demands for sexual favours, and creation of a hostile work environment. Even his habit of conducting job interviews in a room at his hotel while lying on a bed could be read as an implication that willingness to engage in a sexual act could affect their chances of recruitment/employment.
These would be sufficient for complaints of sexual harassment under both the Sexual Harassment at Workplace Act 2013 and the Vishaka Guidelines, which held the field from 1997 till 2013. Many of Alok Nath’s alleged offences took place on sets which would have counted as the workplace.
Employers should have been ensuring that there was no hostile work environment for women, and that appropriate training had been conducted to ensure employees knew they could complain about such behaviour. Sadly, most organisations failed to implement the Vishaka Guidelines, and this would only have enabled predators and harassers.
Unfortunately, for pre-1997 allegations, like some against Akbar, there was no specialised law in place on sexual harassment at the workplace, and so they would only be able to complain about such behaviour as general misconduct. They could have perhaps used criminal law to make complaints under Sections 354 or 509 of the IPC, but this would have ignored the role of the employer in failing to provide a safe working atmosphere.
Can complaints be filed under the Vishaka Guidelines or the 2013 Act now for older cases?
It should be noted that this doesn’t mean complaints can be filed at this time for allegations reaching back several years.
The 2013 Act includes a time limit to file the complaint: Six months from the date of the most recent incident, which would be a bar in filing complaints against Akbar. The Vishaka Guidelines did not include such a time limit, but if the perpetrators have moved on from the workplace where the harassment happened, a complaint would be infructuous.
Of course, rather than simply follow a formalistic view of the law, the current employers of alleged perpetrators could still consider conducting investigations into their conduct, in the interests of ensuring their employees felt safe and comfortable to come forward and report sexual harassment. Such action would, however, be purely at their own discretion, as this is not required by law, and so the process could only work to a very limited extent.
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