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Why “Name & Shame” strategy needs to be relooked

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After a successful #MeToo Campaign, a controversial offshoot emerged in the garb of women empowerment where a California based law student Raya Sarkar deployed crowd sourcing by creating a spreadsheet containing anonymous complaints against sexual predators.

This name & shame strategy is unsuitable in a civilized society, has potential for becoming another avenue for misuse by women, is a reflection of why feminism remains unfulfilled glory and reflecting deeper malaise in society where Institutions have repeatedly failed women.

Several arguments make name & shame strategy unsuitable as: this strategy is akin to mob violence, lynching, kangaroo courts where legal principle of “innocent until proven guilty” is violated. The “presumption of innocence” which also a part Universal Declaration of Human Rights, article 11, states: “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 bed rock of Constitutionalism in India and has been repeatedly followed in legal recourse.

Thereafter, the anonymous complainers adopt the role of victim, lawyer, as well as judge.

Further, sexual misconduct is a highly interpretative term. What might be a minor wrongdoing could be interpreted as offense, a classic case was seen recently where a doctor in Karachi was sacked for sending friend request to one of the patients. This was possibly done because the patient was sister of Oscar winning director Sharmeen Obaid-Chinoy and hence the complaint was taken seriously.

Moreover, name & shame goes directly against “Right to Reputation” mentioned by Supreme Court in Subramanian Swamy case (2016). Apex Court said “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” [pdf].

 

It takes a lifetime to build upon a reputation and seconds to destroy it. Reputation is necessary for personal well-being, mental health & happiness. Reputation of not just the alleged person but also of the family, relatives, organization where person is working, etc. “Name & shame” without proof and evidence has potential to ruin the hard earned reputation of people.

Also, it is hard to deny the prevalent trend of misuse of laws by women which are not gender-neutral, and this name & shame exercise is not gender-neutral. A classic case to prove this is misuse of Section 498A of the Indian Penal Code (harassment to a woman at the hands of her husband and his relatives) often used in dowry related cases. This has been acknowledged by Supreme Court in several cases like Arnesh Kumar vs. State of Bihar (2014), more recently in Rajesh Sharma and Ors v State of UP and Another (2017). Justice Kailash Gambhir (Delhi HC) guidelines on 498A cases, 2008 were also given in similar regard. Hence, it becomes tough to argue that why anonymous complaints will not become another avenue for “witch-hunt”, pursuing “personal vendetta” and undermining 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 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 situation where core feminist agenda has been overshadowed by differences between feminism and 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 3 crore cases pending, and with vacancies unfulfilled at each level. We have a police 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). And we have a society deeply entrenched in patriarchy where women are still seen relative to men, and thereby crimes go unabated.

One can not deny the problem women face & how Indian institutions are failing them, but two wrongs don’t make a right. Even governance failure doesn’t permit such recourse in a civilized society where education, skill development, empowerment are enhancing at a rapid pace and women are a part of it. The solution lies in information dissemination where initiatives of Government need to be promoted & if such initiatives fail Government needs to be held accountable.

Like, recently government launched SHe-box portal where sexual harassment at workplace can be reported, mandatory panic buttons in mobile phones, helplines like 181, 182, etc. Someone, may argue of the lack of functioning of these initiatives, but the better and proper recourse would be to highlight along with “name & shame” if these initiatives don’t work instead of undermining Rule of Law under the garb of anonymity in social media.

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