Additional solicitor general Indira Jaising has written an open letter to former Justice AK Ganguly with leaked details of the testimony of the intern alleging Ganguly had sexually harassed her.
The letter was published by the Indian Express today and contains long passages from the intern's confidential testimony to an internal three-member judicial inquiry.
The article is entitled "When I tried to move away, he kissed my arm, repeated he loved me... Asked me to share room", with Jaising asking Ganguly to step down as chairman of the West Bengal Human Rights Commission (WBHRC). The affidavit’s main points were summarised in the Express with that Ganguly “offered her his bedroom to drink wine and relax”, “wanted her to share his room”, “consumed alcohol, insisted she do as well and persisted” and “put his hand on her back and moved forward to embrace her”.
The affidavit stated:
Soon afterwards, I left my meal, returned to the round table and pretended to continue the work, while I anxiously waited for the car. By now I was feeling threatened. At this point, the judge approached me and, standing next to me, he put his hand on my head, and said, 'You are very beautiful'. I immediately rose from my seat, but before I had a chance to respond to the statement, he caught hold of my arm, saying, 'You know that I'm attracted to you, don't you? You must be thinking, what, this old man is getting drunk and saying such things. But I really like you, I love you'. When I tried to move away, he kissed my arm and repeated that he loved me.
I pushed him away stating that I had to leave immediately. By now it was crystal clear to me that the preceding events were not innocuous in nature, and that he was making unwelcome sexual advances. I quickly picked up my computer and bag, and left the room to take the elevator down. The judge followed me into the elevator, repeatedly saying, 'Please don't go', 'Did I make you uncomfortable?', 'Please don't leave me, I need your help right now', and said that the AIFF report needed to be finished. I did not answer the judge anymore.
The next morning Ganguly allegedly tried to call her several times, which she ignored, after which he apologised via SMS the next day.
Released with consent
Jaising said later that she would like to state "very unambiguously that whatever I am doing, I am doing with [the intern’s] complete cooperation and keeping her in the loop and I would never ever make a document like this public unless I had her full support”, reported the PTI.
“I took the decision only after I realised that powerful sections of society were coming out in the public domain to support A.K. Ganguly, and that people were asking, ‘what did he do?’... Given that he was refusing to resign, I felt compelled to put the girl's affidavit in the public domain,” Jaising was reported by Firstpost as saying.
“What can I do? Who is listening to me?” Ganguly commented to the PTI. “[The testimony] is supposed to be confidential as it was given before a Supreme Court committee. How can it come out in the open?”
Law minister Kapil Sibal chimed in on Twitter for the Supreme Court to “deal with Justice Ganguly”, and later said: “We have faith that Supreme Court will take the strictest possible action for women's security whoever may be the person - be it the retired judge of Supreme Court or anybody else.”
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ibnlive.in.com/news/rajasthan-hc-judge-puts-daughter-under-house-arrest/439830-3-239.html
SJ is either very juvenile or acting on some other motive. Perhaps she is being used.
Her allegations at minimum smack of ageism and prudery. There is no allegation of use of force, no confinement, nothing actionable. The alleged perpetrator was retired from the bench and the alleged victim was a volunteer intern (at most)
If people are ruined over such thin allegations and poor facts, genuine criminal behavior will continue to go unpunished. I see hemlines at the mall that pose more of a risk of outraging modesty than the behavior alleged here.
Ganguly should hold a press conference and admit he made a pass at SJ, that he apologized immediately when he realized his interest was unreciprocated, and that he regrets any misunderstanding. SJ should grow up and get a life. This is analogous to the six-year old in the US who was recently suspended from school for "sexual assault" when he kissed a girl and told her he loved her.
SJ is doing a great disservice to the cause she claims to espouse.
Making a 'Pass' at a woman would also constitute outraging the modesty of women under IPC and sexual harassment.. since SJ was assisting Justice Ganguly while he was a 'one man commission'
"Her allegations at minimum smack of ageism and prudery. There is no allegation of use of force, no confinement, nothing actionable"
If you think kissing a woman (anywhere) is nothing actionable, then please go ahead, stand outside the railway stations/bus stops and smooch/kiss or even blow flying kisses to the women passing by. Please let me know where you intend to do this, so that I can be there to watch the fun.
And please do tell the cops and the women that there is "nothing actionable" against you.. and they will not arrest you and you will not be beaten black and blue by the women!
It's great that non-lawyers are reading LI more often. Welcome!
A lawyer would know the elements for these alleged crimes are very different.
Irrespective of whether this is an alleged crime or not (and from the lawyers I've spoken to, you're wrong in assuming it's not, prima facie), the allegation is very much in the public interest to be reporting and investigating.
Best wishes
Kian
However, the one-sided and unsophisticated "legal" discussion of the issues here is a matter of genuine shock to me.
Even admitting all the allegations as true, I see no reason for depriving a man of his liberty. That's what we're talking about here: not censure, not a fine, not public humiliation, but the deprivation of liberty. He will be branded a criminal. Few responsible for the 1984 riots have been so branded.
I see potential civil liability in tort - if India had a functioning tort regime.
What's surprising to me is the inability to look at this professionally, from all angles, and to argue in the alternative. If the justice were your client, how would you defend him? That is both intellectually interesting and essential part of the discussion here. No justice is possible without a vigorous defense against the power of the state.
Before a jury in any developed society these criminal allegations almost certainly would be dismissed. They simply don't rise to the level of harm that warrants the heaviest exercise of society's power over the individual.
And in a society without the right to a jury trial, where the judiciary at many levels are capable of being reached (according to various reports on corruption in India), thinking persons should be able to park their outrage and think carefully about how the machinery of justice is wielded.
Cloaking oneself in the banner of press freedom and women's rights only increases the duty to exercise caution and prudence. Both are in short supply in the public discourse in this matter.
Lack of grey cells surely the key contributor to that state of being...
Lord give this person strength. And sense. In the alternative (or additionally), may his daughter/wife undergo a similar 'thing' which purportedly does not "rise" to the level of harm blah blah blah...
Amen.
You write:
Quote:That sounds very much like opinion to me rather than an interpretation of the law.
It might, to you, seem out of proportion to award jail time for the alleged act, when compared to murder or rape, but the letter of the laws appear to allow for such possibility.
Similarly, you might think that lumping Tejpal's alleged offence into the traditional definition of rape is too harsh, and some would agree with you. But the letter of the (reformed) law is quite clear that it is prima facie rape.
If you want to take this discussion forward rather than complaining about the low standard here, would be interested to see a legal (rather than emotive) argument of why the allegations against Ganguly could NOT be caught under 'outraging modesty' offences.
Particularly, do explain how the test in KPS Gill wouldn't potentially apply here:
indiankanoon.org/doc/579822/
Best wishes,
Kian
Until then, some quick thoughts: The KPS Gill decision lays bare the blatant sexism embedded in 354, and the facts and reasoning offer far more grounds to exonerate AKG against such a charge than to make it stick. The very public humiliation heaped on the victim in Gill, his unmistakeably aggressive actions (which could easily have constituted battery, and been charged as that) and the very staid societal standard set by the court all stand in stark contrast to the current facts.
There's not much percentage in discussing this issue carefully, however, given the witch hunt atmosphere. But I would remind people that the same court that found that AKG had violated propriety also found behavior prohibited in 377 violative of Indian tradition. The same line of Indian tradition cited in the KPS Gill decision.
Not saying that making the case stick would be easy, but it definitely doesn't seem impossible by your own yardstick.
But I think what the focus of most people involved right now is, more than criminal prosecution which might never happen anyway, is to get Ganguly removed from the WBHRC, which seems reasonable in light of the allegations, rather than a witch hunt...
But I am laughing at this:
"But I think what the focus of most people involved right now is, more than criminal prosecution which might never happen anyway, is to get Ganguly removed from the WBHRC, which seems reasonable in light of the allegations, rather than a witch hunt..."
Are you serious? You just defined witch hunt and then denied that it is not what is happening.
What kind of precedent are you trying to set? That if a someone makes allegations against someone then such person against whom the allegations are made should resign irrespective of the fact that such person doesn't want to prosecute? What kind of circus is this?
Have you read Mr. AK Ganguly's affidavit? Have you read the full report of the SC? Do you know what is the procedure for removal of chairperson of a State Human Rights Commission? Do you know and comprehend why is it stringent? Don't we have institutions to deal with it? Why do you want him to resign so desperately? Aren't you trying to imply that if such resignation happen then it will be an instance of 'acquiesence' on part of such person?
Do you even understand what does it mean that a "statement prima facie discloses an act of unwelcome nature", is it an 'indictment' or a 'finding'? You are violating the basic principle of natural justice that no one should be condemned unheard.
I suppose you studied law. I never expected such non-sense. I don't intend to comment anymore on this.
"95. Act causing slight harm.-- Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm."
If this wasn't there all the ex-boyfriends will be behind bars.
Spread Love and not War.
So, are you saying that I can go around kissing women (when it is clearly unwelcome by her) and be excused under Section 95 of the IPC? Is that the intention of Section 95?
God save lawyers like you.
Otherwise if you don't understand then who am I to stop you from being a citizen of a banana republic.
You don't need to support Ganguly's actions to ask whether his behavior rises to the level of a crime.
If the bulk of the readers prefer a media supari to a reasoned discussion there's not much one can do.
As for the status of the criminal defense thinking in these pages...."Shahid" shows just how brave most of the bar is when confronted with discomforting defendants.
So for you I'll suggest you to read Rupan Deol Bajaj V. KPS Gill which Mrs. Jaising is citing (in which she represented the Appellant and Mr. Tulsi was representing the defendant)which held that Section 95 doesn't apply to Outraging the Modesty of a Woman.
So here comes the double standard of SC as some would say or should I say that it is a realisation of a mistake they committed long back because they could not fathom a situation like this back then?
The fact is definitions of offences are getting broader and broader to stop the menace whereas defences are getting narrower and narrower. Which means you are having a legal system which is absolute with no room for anyone who is being made offender because of the imperfections of language or those who are allegedly being drawn into false charges.
So needless to say how important this Section becomes in today's world when a blog post can create so much storm (intentionally or unintentionally) where everyone can write whatever they want and still avoid legal recourse.
Why does his behaviour not amount to a crime - outraging the modesty of a woman (which is an offence under IPC)?
You state that "Since you are hell bent on a media trial I am just bringing your attention to a provision which protects trivial acts that happen in day to day life."
Kissing a woman without her consent is a trivial act that happen in day to day life??? Is that how the women in this country should treat such actions - that this is a trivial act, part and parcel of being a woman, that this should be ignored, any man can kiss her and embrace her without her consent and then brush it away as saying that this is a "trivial act" which happens in "day to day life" and women should get used to it.
You have a pathetic mindset!
In fact it is you who is no better than a member of a khap panchayat with feudal, archaic and male chauvinistic mindset
Anyway be happy with your prejudices after all ignorance is bliss.
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