RK Pachauri’s civil suit against a women’s rights lawyer could set a very dangerous precedent

Here's a catch up of various articles I've written for Scroll that I haven't posted on this blog.

April 12, 2016

The move by the climate scientist, who is facing sexual harassment charges, is likely to have a chilling effect on other women.

http://scroll.in/article/806530/rk-pachauris-civil-suit-against-a-womens-rights-lawyer-could-set-a-very-dangerous-precedent

Maneka Gandhi is right

The Hindu, Sunday Magazine, December 20, 2015

The Hindu

R.K. Pachauri continues to head TERI while his successor is yet to take over. Photo: Prashant Nakwe

 

 

Prime Minister Narendra Modi runs a tight ship. Hardly any minister in his cabinet speaks out of turn. Except one. Union Minister for Women and Child Welfare Maneka Gandhi appears to have no hesitation in voicing her unhappiness with some of the decisions of her government.

So while she is already on record asking that marital rape be criminalised even though her government thinks otherwise, in May this year she objected to the cutback in central funds allocated to programmes under her ministry. She was particularly upset that the allocation for the Integrated Child Development Services, a programme that has been crucial to improving nutritional levels of the most vulnerable children and women, has been cut by almost half. Furthermore, even the National Nutrition Mission launched in December 2014 by her government has been given short shrift. Far from the Rs.28,000 crores over five years that it was expecting, it has been allocated only Rs.100 crores so far.

In the recently released Human Development Report of the United Nations Development Programme, India’s maternal mortality figure of 190 (number of women who die for every 100,000 live births) is substantially higher than even war-torn Syria (49) and Iraq (67). Its child mortality figures are equally depressing as compared to many other countries.

Her latest missive to her own government is equally significant. In a letter to Union Finance and Corporate Affairs minister Arun Jaitley, Gandhi has asked him to make it mandatory for companies to reveal whether they have set up an Internal Complaints Committee (ICC) as required under the Sexual Harassment at the Workplace Act 2013. This is a reasonable request. Yet, Jaitley has dismissed it saying that such an additional demand on companies is “undesirable”.

How does the question of whether it is “desirable” or not enter the picture? The law has mandated that all companies and organisations must have an ICC. It also requires companies to inform employees about provisions of the law and train members of the ICC on the law and what constitutes an offence.

The non-compliance levels of Indian companies underline why Ms. Gandhi’s request is not unreasonable. According to a report titled “Fostering Safe Workplaces” by the Federation of Indian Chambers of Commerce and Industry and Ernst and Young, one in every three Indian companies, or 31 per cent, has not set up ICCs. Of those who have, 40 per cent have not begun training the members in the provisions of the law, 35 per cent are unaware of the penal consequences of not complying with the law and 44 per cent have not circulated information about the law to their employees. FICCI has just signed a Memorandum of Understanding with UN Women to advance “gender equality and women’s empowerment”. A good start would be to get its members to comply with provisions of the sexual harassment law.

According to the National Commission on Women, the complaints of sexual harassment at the workplace have doubled from 249 in 2013 to 526 in 2014. These represent a sliver of the reality. For every one case reported, there are likely to be dozens that remain hidden, with the women too afraid to raise their voices for fear of losing their jobs or being further victimised.

We know from the recent sexual harassment case at The Energy and Resources Institute (TERI) how difficult it is for a woman to pursue a case against a powerful individual. When the TERI employee first complained against the head of the institute, Dr. R.K. Pachauri, TERI did not even have an ICC. Once constituted, the ICC upheld the woman’s complaint. Dr. Pachauri was asked to go on leave and the board (after some pressure from the media, one might add) appointed his successor. Yet, Dr. Pachauri continues to head TERI while his successor is yet to take over. Meanwhile, the affected woman has resigned. In her resignation letter, she states: “TERI failed to uphold my interests as an employee, let alone protecting them. The organisation has instead protected R.K. Pachauri and provided him full immunity, despite being held guilty of sexual harassment by your own inquiry committee.” This case is as clear an illustration as any of the skewed power equations in sexual harassment cases.

Compliance with the law is obviously only the first step. The minimum requirement is an ICC. Yet, as is clear from the TERI case, it is not enough. Organisations must support those women who find the courage to speak up. Instead, in their desire to avoid any slur on their reputations, many organisations end up protecting the harasser and literally hounding the complainant to leave. So, Maneka Gandhi is right. Insisting that registered companies (and other organisations) comply with this minimum requirement is not asking for too much.

Hushed voices

The Hindu, Sunday Magazine, Aug 2, 2015

The Other Half

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  PTI

   
  Can a woman who complains about being sexually harassed by her boss actually succeed in getting justice? This is at the heart of the controversy, furiously discussed in the media, after the governing council of The Energy Research Institute (TERI) announced that it had decided on a successor to its current head, R.K. Pachauri.

Pachauri has been embroiled in a sexual harassment case after a 29-year-old researcher at TERI filed a complaint with the Internal Complaints Committee (ICC) against him. The ICC upheld her complaint but the matter did not end there. Pachauri managed a stay on its ruling by moving the Industrial Disputes Tribunal and eventually even managed to get permission to resume work at TERI. Despite the serious charges, he was not asked to step down but allowed to take leave. Even today, he continues in his position and will only handover when his replacement takes over.

What lesson can women who are harassed by powerful men draw from this? One, that even if their organisation has the mandatory ICC and they take courage into their hands to file a complaint, a favourable ruling is not enough. While the ruling of the ICC can be questioned and challenged, as has been done by Pachauri, there is a moral dimension that the organisation has to take on board in such instances because the complainant is usually powerless while the accused is powerful. If the status quo continues, it is the complainant who will crumble, not the accused. Unfortunately, the governing council of TERI has sidestepped this by not acknowledging the ICC’s ruling.

Also, although both have access to the law, it is the powerful that are better placed to use, and even manipulate, the law. This is the story of the Indian justice system. We see it played out repeatedly. A depressing illustration of this is in the data released by the National Law University about people on death row in India. The startling statistics tell us the ugly story of how the law functions. Based on interviews with convicts condemned to death, the researchers found that 75 per cent of them belonged to lower and backward castes, were extremely poor, or were from religious minorities. In fact, 94 per cent of those awarded the death penalty for terror related cases were either Dalits or from religious minorities. We also know that the majority of undertrials in our jails fall into similar categories.

Does this mean that only the poor and the marginalised are criminals in our society? Do the rich and the powerful not commit any crimes? What this data tells us is that even if the latter commit crimes, they know how to work the system to their advantage. The others are either unable to do so because they do not have the resources to get able legal help, or are marked because they belong to a particular religious minority and thus are labeled even before being tried.

Apply this to sexual harassment cases. Union Human Resource Development minister Smriti Irani recently stated that between April 2014 and March 2015, 75 sexual harassment cases had been registered in higher educational institutes. Of these 27, including the TERI case, were in Delhi.

These cases are just the tip of the iceberg. For every case reported, there must be literally scores that are either dismissed as frivolous, or never reported. In innumerable instances, women prefer to quit a job rather than taking on the challenge of pursuing the charge of sexual harassment. And they can hardly be blamed given that the process can break a person.

Vrinda Grover, the feisty human rights lawyer, makes an important point about the process of getting justice in such cases when she says, “From investigation to prosecution to trial, the entire system works overtime to subvert justice. At each stage the investigation is compromised. Evidence is not taken on record. Eventually, when the prosecution fails to prove the case due to shoddy and complicit investigation, the loud chorus of false cases begins.”

So the Pachauri case illustrates several crucial issues around sexual harassment. One, it is imperative that both men and women are made aware of what constitutes sexual harassment as laid down in the law. Two, that the system for seeking justice needs to be in place, such as the mandatory ICCs. These must not be token. They must have credibility so that victims of sexual harassment feel confident to approach them or the police.

And finally, when the harasser is a powerful individual, the woman will need support to survive the process of following through on her complaint as the decks are heavily stacked against her. Here the media, including social media, and civil society can play a role in building up moral pressure on organisations.

Yet, all of this will not be enough if we do not change the way our criminal justice system works. Only if that happens can women who are sexually harassed hope that there is a light at the end of a very dark tunnel.