After a successful #MeToo Campaign, a controversial offshoot emerged in the garb of women empowerment, where a California based law student Raya Sarkar deployed crowdsourcing methods by creating a spreadsheet containing anonymous complaints against sexual predators.
In my opinion, this name and shame strategy is unsuitable to a civilised society. It has the potential for becoming an avenue of misuse and is a reflection of why feminism remains an unfulfilled glory, reflecting a deeper malaise in the society where institutions have repeatedly failed women.
Several arguments make the name and shame strategy unsuitable as: this approach is akin to mob violence, lynching and kangaroo courts where the legal principle of ‘innocent until proven guilty’ is violated. The ‘presumption of innocence’ which also a part of the Universal Declaration of Human Rights, Article 11, states that: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.” This basic principle forms the bedrock of constitutionalism in India and has repeatedly been followed in legal recourse.
There is a danger of anonymous complainers adopting the role of victim, lawyer, as well as the judge in situations such as the name and shame game.
Further, sexual misconduct is a highly interpretative term. What might not be an intended misconduct, could be interpreted as an offence. A classic case was seen recently where a doctor in Karachi was sacked for sending a friend request to one of the patients. This was possibly done because the patient was the sister of Oscar-winning director Sharmeen Obaid-Chinoy and hence the complaint was taken seriously.
Moreover, the name and shame method goes directly against the “right to reputation” mentioned by the Supreme Court in Subramanian Swamy’s case (2016). The apex court said that, “The right to one’s reputation which has been held to be a facet of Article 21 – (Right to life) is basically vis-à-vis the State, and hence, Article 19(2) – (Freedom of speech & expression) cannot be invoked to serve the private interest of an individual.”
It takes a lifetime to build upon a reputation and seconds to destroy it. A reputation is necessary for personal well-being, mental health and happiness. The reputation of not just the alleged person, but also of the family, relatives and organisation where a person is working, gets jeopardised. Naming and shaming without proof and evidence has the potential to ruin a hard-earned reputation. Also, it is hard to deny the prevalent trend of misuse of laws which are not gender-neutral by women, and this naming and shaming exercise is not gender-neutral.
A classic case to prove the misuse of Section 498A of the Indian Penal Code (harassment to a woman at the hands of her husband and his relatives) are dowry-related cases. This has been acknowledged by the Supreme Court in several cases like Arnesh Kumar vs. State of Bihar (2014), and more recently in Rajesh Sharma and Ors v State of UP and Another (2017).
Justice Kailash Gambhir’s (Delhi HC) guidelines on 498A cases, 2008 were also given in similar regard. Hence, it becomes tough to argue about why anonymous complaints will not become another avenue for witch-hunting, pursuing a personal vendetta and undermining the rule of law.
An intellectual discourse within feminists is divided on such methodology. Liberal feminists strive for sexual equality via political and legal reform, and a recent post by a famous feminist Nivedita Menon against the ongoing paradigm is a reflection of liberal feminist against such social media lynching.
However, radical feminists who attack patriarchy believing that women are denied ‘authentic subjectivity’ (Simone De Beauvoir) could well support the cause. Such adherence to ideas of ideology has led situations where core feminist agenda has been overshadowed by the differences between feminism. Feminism in India remains an example of unfulfilled glory.
However, all such incidents also reflect a deeper point on how society sees the route to justice. We have a judiciary with over three crore cases pending and with vacancies unfulfilled at each level. We have a police force which is unable to justify PM Modi’s acronym SMART (strict and sensitive, modern and mobile, alert and accountable, reliable and responsible, tech-savvy and trained.) We have a society deeply entrenched in patriarchy, where women are still seen relatively innocent to men, and thereby crimes go unabated.
One can not deny the problem women face and how Indian institutions are failing them, but two wrongs don’t make a right. Even governance failure doesn’t permit such recourse in a civilised society where education, skill development and empowerment are enhancing at a rapid pace and women are a part of it.
The solution lies in information dissemination where initiatives of the government need to be promoted and if such initiatives fail then the government needs to be held accountable.
Someone may argue about the lack of functioning of these initiatives, but the better and proper recourse would be to highlight if these initiatives don’t work instead of undermining the rule of law under the garb of anonymity in social media.