New Delhi: India’s #MeToo movement in 2018 named and shamed heavyweights from the world of art, media, entertainment and academia, among others.
One such big name was artist Subodh Gupta.
In December 2018, an anonymous Instagram account called ‘HerdSceneAnd’ accused Gupta of making sexual advances towards different women, who were his co-workers.
Nearly a year after the accusations were posted online, Gupta approached the Delhi High Court in September 2019. Apart from demanding that the posts be taken down, he also sought Rs 5 crore in damages for causing harm to his reputation, claiming that art galleries are refusing to display his work because of the allegations.
What followed was a reignited debate on the issue of anonymity as well as on those providing a platform for posting anonymous allegations online. However, the case ended unexpectedly earlier this month after Justice Rajiv Sahai Endlaw of the Delhi High Court accepted an “amicable settlement” between the parties.
ThePrint takes a look at what transpired in the case and the anonymity debate that it revived.
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Only a ‘whistle-blower’
As the high court began hearing the case, it did allow the Instagram handle to maintain its anonymity and file its response in a sealed cover.
The anonymous Instagram account then submitted that it was merely a “whistle-blower”.
The account quoted a 2010 judgment, among others, during which the Supreme Court had ruled, “A whistle-blower is a person who raises a concern about wrongdoing occurring in an organisation or body of people. Usually this person would be from that same organisation.”
Whistle-blowers, the judgment added, “may make their allegations internally (for example, to other people within the accused organisation) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues)”.
Citing this judgment, the Instagram account said that its purpose was to “spread awareness in good faith and in public good, especially among those who were working in the Indian art fraternity, as they made up the concerned affected group”.
The last straw
Starting 18 September last year, a total of 10 orders were passed by the court in the case.
The first one ordered the Instagram account not to post anything on Gupta for the time being and also directed Instagram, Facebook and Google to take down several posts and articles pertaining to accusations against Gupta.
In the next order passed on 30 September, Instagram was ordered to disclose the identity of the anonymous account to the court in a sealed envelope.
However, the case took a turning point on 22 January this year when the high court gave two options to the Instagram account — either represent the people on whose behalf the allegations were posted or add the sexual harassment survivors as parties to the case.
Justice Endlaw also agreed to consider the possibility of in-camera proceedings to protect the identity of those involved.
However, this seems to be the point where the case fell through.
So far, the court had allowed the Instagram handle to maintain its anonymity. But going forward, the nature of the legal proceedings would’ve transformed because specific allegations would have been discussed and scrutinised.
During the next hearing on 4 February, the lawyers for the Instagram account informed the court that they were attempting to “amicably resolve” the controversy.
The case reached a premature end on 11 February when the lawyers for the Instagram account informed the court that they were willing to withdraw the posts and allegations.
In response, Gupta’s lawyers told the court that they were willing to let go of the other demands and agreed to maintain the anonymity of the Instagram account.
Talking to ThePrint, Advocate Abhik Chimni, who represented the Instagram account felt the fact that the court allowed the Instagram account-holder to retain their anonymity while making submissions was a small win in itself.
“I actually do think that it was important for the court to recognise that anonymity for a person in such a case is significant. The court passed an order allowing the person to file the reply anonymously. This is important because in future cases or in sensitive cases like this one, it might allow people to come forward,” he said.
“Otherwise, the court came to no finding. Both parties ended it. But anonymity is something that the court did, even if temporarily, allow,” he added.
Mumbai-based lawyer Rutuja Shinde, who has offered free legal advice to several women who came forward during the #MeToo movement, also felt that the grant of anonymity is an “important legal step”.
“This is an important legal step as in cases of sexual harassment, as due to the existing power dynamics especially when an influential person is called out, it becomes necessary to protect the victim/whistle-blower,” she said.
“The right to remain anonymous has become extremely important after the #MeToo movement since there have been instances of further harassment, threatening, intimidation etc. of complainants,” she added.
Neoma Vasdev, the lawyer who represented Gupta, declined to comment when ThePrint reached her.
The anonymity debate
The case took the anonymity debate, which was until then only being talked about on social media, to the court room — with both sides actively arguing for and against it.
Delhi-based criminal lawyer, Amish Aggarwala, who represented Saravjeet Singh in the sexual harassment case against him, also felt the anonymity granted by the court was “progressive”. However, he added that this could also function as “another roadblock in dealing with fake allegations”.
“Victims need lawyers to help them seek their remedies in law. I encourage victims of sexual harassment/assault to march into a police station without a moment’s delay. The victim’s prompt response establishes credibility. And adequate protection is available from courts,” he said.
He recounted a case where he helped a sexual harassment victim with registration of an FIR and has been successful in maintaining the victim’s anonymity during investigation.
“The accused will defend himself in court, and not on some social media post,” he said.
However, advocate Tahini Bhushan, Partner at Vaidha Law, felt that the final outcome of the case would “dissuade” women from coming out with their stories.
“If you see the case of Roger Ailes and the concept of non-disclosure agreements, I think this is the first time that we have seen a settlement outside court with take-down of the posts that were under contention. The anonymity part of the #MeToo movement provided strength and this will dissuade a lot of women from coming out with their stories,” she said.
Bhushan was referring to the sexual harassment allegations against Fox News’ former chief Roger Ailes, and some reports claiming that the non-disclosure agreements signed by Fox News employees prevented several women from publicly commenting on the case.
While the case was a defamation suit, other significant questions of law were also raised during the hearings.
For instance, Facebook had moved an application in the court, in November last year, against the court’s direction to reveal the Instagram user’s identity.
It had asserted that this “would risk violating the right to privacy” and adversely impact “potential victims of sexual harassment who share their experiences” through the account.
However, in the meantime, the Instagram user’s lawyers also stepped forward with their argument claiming that the account user was merely a whistle-blower. So finally, Facebook did not have to reveal the identity of the account. But whether Facebook’s argument would’ve been accepted by the court or not could not be adjudged in this case.
Also, after the court ordered Google to take down certain URLs containing allegations against Gupta, Google resisted the order, saying that it would be “against public interest” to take down the articles and that this would have a “chilling effect on free speech”.
In fact, Google also claimed that the case had been “clearly initiated with a view to put an unreasonable restraint on the freedom of speech and expression on the internet as well as the freedom of the press”.
Google’s contention was that Google was merely a search engine and that the websites that owned and hosted such content, such as The Economic Times and Business Standard, had not been made a party to the case.
While Google did remove a few URLs, two larger questions of law were “left open for consideration in another appropriate case” — whether Google should be made a party in such cases and whether action can be initiated against Google without making the websites hosting the content, parties to the case.
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