Nikhil Kanekal explores the media furore and arguments surrounding the swirling #InternJudge sex harassment case that has thrown media, bench and bar into a tizzy.
As is the case with the most pressing issues facing India, Arnab Goswami, editor-in-chief of Times Now, in his characteristic rage-engulfed style, asked the nation to implore this Friday night why the Supreme Court had not done more than merely issue a report on an alleged sexual harassment case surrounding a former judge.
Asok Kumar Ganguly, who retired from the apex court on 3 February 2012 and is currently the chairperson of the West Bengal Human Rights Commission, was accused of sexually harassing a former research associate on 24 December last year. In its report, a three-judge panel said the statement given by SJ, the research associate (or ‘intern’ as some have chosen to refer to her), appears to contain prima facie evidence against Ganguly.
This is not a conviction or indictment as some have chosen to report to readers and viewers, although it would be proper for Ganguly to step down from public office while facing such an accusation.
The remainder of Goswami’s weeknight show, the Newshour, involved two Supreme Court lawyers - Aryama Sundaram and Sanjay Hegde - helping the host understand why the court could not, and perhaps should not, act further on its report.
Goswami wanted the court, having “taken cognisance” of the case, to direct the police to investigate the matter and follow it through to its logical conclusion. The original promotions for the show, which ran earlier on Friday, said the debate would centre on whether Ganguly should continue to remain in office as a human rights chairperson.
Supreme justice
Unfortunately, Goswami appeared to have gotten stuck on why the apex court itself was not bringing a former judge to justice. Goswami hinged this on the promise of P Sathasivam, the Chief Justice of India (CJI), who reportedly said, “justice will be done” on the allegation made by SJ, while it was still unclear who the “recently retired” judge was.
As CJI Sathasivam subsequently explained in his note on the panel report, Ganguly was not a judge at the time of the incident and therefore could not be held liable under an internal committee of the court. To use Goswami’s logic on himself, it would be akin to expect him to take action against a former Times Now employee who committed a transgression after having left the channel.
In Ganguly’s case, SJ can’t want the highest court to act as her court of first instance, nor was she expecting it to. She simply chose to depose before the SC committee because they asked her to.
It is not new for the inaptly-named Newshour to lack nuance (among other things), but Goswami’s confusion, which often manifests as national frustration, on why the Supreme Court had merely chosen to let the matter rest with the issuance of a report, appears to be shared by a few others I’ve spoken with recently.
More complex than ‘banter’?
Let’s just take a step back to understand that sexual harassment is not uniform or measurable, unlike rape and murder.
Not just legally, sexual harassment is complicated. It is different from rape because it stops short of what is potentially a full violation of a person’s body, but is violating nonetheless. When a person makes advances towards another and does not stop when disapproval is communicated, it is harassment. If it gets physical, it is harassment compounded with assault.
Inevitably, people always know when another is not interested in them. It is a biologically built-in mechanism, further refined by socio-cultural norms - decency and humaneness kick in to help us understand that our advances, words and actions are unwelcome and must cease.
This is when most stop. This ability to exercise restraint and empathy, and to be sensitive to another being’s feelings, is also what sets humans apart from most animals.
Sadly some of us don’t understand rejection, or chose not to. Even more sadly, the worst go through with their assertion, inflicting a scarring, sometimes violent mark on their target.
Unequal power equations
In Ganguly’s case, the allegation is not of rape, but of unwelcome sexual advances. To further complicate the matter, he is a person of authority with whom the victim shared a fiduciary relationship. According to SJ’s account, Ganguly was attempting to exploit the power equation between them.
The law recognises this phenomenon of powerful persons trying to sexually assert themselves over subordinates and has a higher penalty for those who are held guilty of this offence.
And as rightly pointed out by Sundaram and Hegde on national television, the law also recognises that the prerogative for kicking it into motion on sexual offences lies with the victim. If the victim of a sexual crime is not interested in pursuing charges against the perpetrator, then this choice needs to be respected.
I say this in full awareness of the fact that it is often tough for victims to come forward and confront culprits. But it is difficult to understand the psyche of those victims who make a conscious, empowered choice not to press charges and testify. It is not easy to understand a desire to disassociate oneself with an unsavoury incident of the past.
It is harder still to understand forgiveness. That’s perhaps why we forgive so rarely.
Unforeseen consequences
When she wrote her blog on 6 November, nearly 11 months after the incident which unquestionably left her shaken, SJ had no idea it would snowball into a campaign against her alleged tormentor.
If it seems hard to understand why she wrote what she wrote, while saying originally that she wasn’t interested in pressing charges, one answer is straightforward: she did it for closure.
She chose to publish it on a blog not because she wanted action against Ganguly, but to let it serve as a warning to others in similar positions - originally intended for potential victims, but working well to caution possible tormentors as well.
Sometimes victims could feel that frenzied media coverage and public outrage about their case is disproportional to the extent of harassment. They might also want to get on with life, which means not having to constantly engage with the criminal justice system and possibly face social stigma for speaking out about acts which have typically been borne silently till now.
SJ herself has described similar concerns in her original blog post, subsequent statements and in interviews with the WSJ and Legally India.
However, the ball has now rolled out of her court due to the position of her alleged harasser: a retired Supreme Court judge who was in the limelight for his judgments in closely-watched cases. And ironically, he still occupies a public office where victims of sexual offences might come to seek recourse, making him an easy target for campaigns and fury.
The inadvertent punch SJ landed on Ganguly was therefore much more powerful than she could have possibly imagined, and the public naming and shaming that he is being put through is itself significantly stressful - he told me so himself, twice.
The bitter end
The inability of persons to understand SJ’s apparent reluctance in pursuing the matter to its logical conclusion has led to speculation. In Delhi there are conspiracy theories swirling about Ganguly being a victim of disgruntled litigants who were hit by the rulings in the 2G spectrum case. In Kolkata there is reportedly talk in Left party circles that Ganguly was enticed by a political mole.
It is precisely for these reasons that victims of sexual offences prefer to distance themselves from the incidents they were involved in.
Members of the legal profession - mostly male - talk of a fear psychosis that would prevent them from hiring women subordinates in the future. Others have questioned SJ’s competence as a lawyer and worker, pursuing a line of argument that weak workers usually file frivolous complaints against their bosses.
Both these ideas are beyond bizarre.
Only those who have no control over themselves, or cannot resist keeping romantic/sexual feelings outside of the workspace would fear hiring employees of the opposite sex. And ‘weak’ employees usually aren’t the ones to file complaints against harassment. It is the more competent ones who do so because they’re good and they know it. Senior colleagues feel threatened by them and try to dent their ascent through harassment, which is sometimes sexual in nature.
As for Arnab Goswami, he probably knew all of this anyway, but having been endowed with the exclusive responsibility of producing the best television programming every weeknight, he did what he did had to.
As BV Rao explained to a friend in a letter recently, “It is tough to figure out why Arnab needs any experts at all because he knows the answers to all his questions. Times Now insiders say that more often than not he finds questions to the answers he already has. On his show, politicians can’t politicise, bureaucrats can’t beat around the bush, sportspersons can’t play games and lawyers can’t use legalese.”
threads most popular
thread most upvoted
comment newest
first oldest
first
Understood. But that is in relation to discharging administrative function of the court. The SC may not be able to take action against a retired judge on the administrative side. However, it could have taken judicial cognisance of the matter and directed the police to lodge an FIR. It is not that SC has not, in the past, taken suo moto cognisance of crimes committed in the country.
Unless SJ had informed SC that she did not wish to initiate any criminal proceedings/FIR in this matter, in which case the SC should definitely not have pursued the matter any further and should have definitely recorded this reason in the statement of the Chief Justice
Justice Ganguly is a victim of Trinamool conspiracy, says the CPI(M) www.outlookindia.com/article.aspx?288761
In India where most politicians, a large number of lawyers (yes I am accusing my own fraternity) and some elements of the fourth estate, seriously lack integrity, it is not surprising to see the so called “defence mechanics” being kicked into play. There is a sense that everything needs to be over dramatised to seek attention. The need for dramatisation inevitably results in an offensive against the victim, thus subjecting the victim to more harassment. It is therefore unsurprising that a ‘victim’ can never determine the course of action.
Very fair points, but it will be great if you can respond to a couple of aspects that detract from an otherwise well-written article.
“And as rightly pointed out by Sundaram and Hegde on national television, the law also recognises that the prerogative for kicking it into motion on sexual offences lies with the victim. If the victim of a sexual crime is not interested in pursuing charges against the perpetrator, then this choice needs to be respected.”
Serious crimes i.e. cognizable offences are not only about the victim, but also about the whole society (because the whole society is at risk if the offender is not reformed). Thus, cognizable offences do not require the consent of the victim as a per-requisite for prosecution/judicial cognizance, because the whole society is at risk. Accordingly, the law does not spare the offender merely because the victim is not willing to make a complaint! The law also provides that anyone can make a complaint - a DU professor has filed an FIR regarding the “intern harassment” matter. If you are aware, and since you seem to agree with the view of Sundaram and Hegde, could you please clarify where is it said that the “prerogative [...] lies with the victim”?
“Only those who have no control over themselves, or cannot resist keeping romantic/sexual feelings outside of the workspace would fear hiring employees of the opposite sex.”
Your otherwise good analysis gets almost derailed by this one! Aren't you aware that any woman can falsely allege that she was sexually harassed (FYI - a lot of false cases are filed by students against professors, neighbours against neighbours with whom they have a dispute, batchmates against batchmates, employee against employer, etc.)? Do you know that the lower courts have been told to be extremely cautious about permitting arrest in dowry cases since a lot of false cases are registered - similar directions may be issued for sexual harassment complaints, which are being misused even more! In this context (which you seem to have ignored), what is wrong if an upright and real gentleman says that he feels scared of female employees? In fact, such men will feel scared because they are not like the nonchalant lose-character bastards who harass women for pleasure. Would be interesting to have your view.
Best.
What would a prosecution/police do if a victim retracts or denies a charge (even assuming that the charge was made on the victim's behalf)? Would it be possible to pursue or a case without a direct or indirect statement from a victim? And, most importantly, would it be right to force someone to be put through a trial and all its accompanied frenzy if they are unwilling?
My entire argument is gender neutral. Even men can be victims of sex crime. Any man might also falsely allege something against a woman or another man. Why you presume that only women are capable of filing false claims exposes your mindset.
First, kindly appreciate that a cognizable offence does not necessarily require the statement of the victim for initiation of prosecution. An accused can be successfully prosecuted and convicted if there is direct ocular evidence, which need not be the evidence/testimony of the victim. Even if there are no eye-witnesses, the accused may himself make an admission to someone else or under cross-examination, which could lead to a conviction! This is a rule of evidence which is followed because a victim may become an unwilling “hostile witness” but the larger interest of the society requires conviction and reformation of the accused. Your (philosophical) question “would it be right to force someone to be put through a trial and all its accompanied frenzy if they are unwilling” is answered in the affirmative by most Commonwealth jurisdictions, including our apex court. Accordingly, I would request you to consider whether it was fair for an educated person like yourself to make rude observations about the level of information of someone - whose only intention was to engage in a healthy debate - without explaining how/why the other person has made an incorrect observation. Kindly appreciate that my reference to dowry cases was only meant to suggest how certain victim-friendly laws are capable of so much abuse that the Courts are forced to change the rules. Sexual harassment laws belong to the same species as various "false complaints" are known to have been made. Needless to add, this is without any reference to the "intern harassment" case.
Second, you seem to presume that I have a certain “mindset”, while my question was only aimed to seek the view of someone who has taken out time to write on a subject that is posing large questions for our society. If one cannot look at the other side without getting slammed for being a narrow minded person, we will never be able to frame laws that are balanced and meaningful. This is also the reason why many of our MPs only shout but rarely "discuss" or "debate" :) I do not follow why you raise the question as to whether men can make false accusations! Of course they can, but I was discussing your observation that only “predatory men” will be afraid of female employees and “good men” have nothing to fear because nobody will ever file a false case against them. Without any intention of being rude, I found your observation "Only those who have no control over themselves, or cannot resist keeping romantic/sexual feelings outside of the workspace would fear hiring employees of the opposite sex" very naive/illogical.
We are all free to have our opinion and even "attack" everyone who begs to differ. While the former is required for society to advance, the latter is not! I hope you'll understand that I was not trying to disprove you, but only voicing a contrary view to seek your considered rebuttal. I have no interest in hearing you if you just want to take a moral high ground and go around with a "sledgehammer" intended for anyone who differs :)
Best.
Thanks for your support, which will hopefully make Mr. Kanekal realize that "zealous banter" is one thing, and a "reasoned debate" is quite another! His response was very disappointing for someone who is a law graduate as well as a journalist!! On a lighter note, it is perhaps evident why Mr. Kanekal was unable to engage in a debate - by profession, he is a brother of Mr. Goswami, who he decries :P
@ Mr. Kanekal: Journalists are very important in a democracy and it is disheartening to see that even the more educated ones (like yourself) can only force their point of view instead of taking stock of social realities / other perspectives. Unlike Mr. Goswami, you had no compulsions to merely cry "I am right, I am right ..." on this forum!! I hope you'll grow from this experience. All the best.
By the way, most traditional journalists don't even take time out to respond to most anonymous commenters online precisely because internet commenters end up taking debates personally (despite being anonymous).
Best wishes,
Kian
Not cute, this taking sides. It would be much appreciated if you respect readers' choice to remain anonymous, or at least refrain from implying that anonymous commenters merely throw stones or lack b@ll$. I am amazed by your reaction on some occasions of late!!
By the way, the only person who seems to have taken it personally is Mr. Kanekal. He will not be doing anyone a favour if he responds, but if he chooses to, he has the obligation to make sense, else risk being damned as
a foolanother Arnab Goswami. He he.Best wishes,
Yours anonymously
The honorable SC seems to have forgotton the right to equality while taking action against Justice Ganguly and not doing anything in the case of ex-Justice Swatantar Kumar (despite his incident happening when he was a sitting judge. This point is not even highlighted by the media as part of its duty to present fearless analysis of the incidents.The main problem today is that many media houses are doing a great dis-service to the nation, by allowing their anchors to force the panelists to accept the anchor’s version or face undue volley of irrational and often uncomfortable questions, which are at times irrelevant. The success of some such top anchors in increasing TRP for their programmes, which is shamelessly encouraging more and more anchors to ape them, is the saddest thing that can happen to India journalism. But the day is not far-off when viewers would see through this game (often performed as part of pad duty towards the funding political party or other vested interest, and look towards news based on facts, and discussion based on honest criticism, where the anchor plays only a journalist and not misuses the programme to force his views in favor of or against a particular stand, which is often done by him as part of the hidden agenda, and with support of other panelists which are selected by his channel, often in a manner that suits the channel’s agenda. The public must come out against media trial, as it often results in injustice to one side or the other.
threads most popular
thread most upvoted
comment newest
first oldest
first