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NLSIU explains potential issues in its move to disclose campus sex harassment to recruiters

Is the RCC getting actively involved in battling sex harassment a good idea that other RCCs should emulate?

RCC statement on the objectives of the sexual harassment prevention amendment
RCC statement on the objectives of the sexual harassment prevention amendment

At NLSIU Bangalore last week, for the first time in the life of the law school’s 15-year-old Code to Combat Sexual Harassment (the so-called SHARIC), which has resulted in seven sexual harassment inquiries to date, students came up with the idea of an internal rule that would hit those found guilty where it may hurt the most: their job prospects.

Effective 14 September 2017, if an NLSIU student is held guilty of sexual harassment (under the SHARIC or under the sexual harassment prevention code of any other institution) that record would be disclosed to law firms applied to through the law school’s Recruitment Coordination Committee (RCC), should the law firms ask for students’ employment records of internships and placement files to include such records.

However, some voices on NLSIU’s campus have expressed discomfort with the timing and potentially apparently semi-retrospective effect of the amendment, which was enacted one day after final orders were reserved in a nine-month SHARIC investigation of one of its own members.

If the Sexual Harassment Inquiry Committee (SHIC) holds the accused guilty in its final order, that person's internship applications sent in the RCC’s February 2018 and future rounds will be impacted.

We spoke to a number of people and have examined the rule change and its rationale. Please let us know what you think in the comments, and if you think other RCCs should also take up similar initiatives.

How does the amendment work?

In a nutshell, the RCC will ask participating law firms and recruiters if they would like sexual harassment convictions disclosed. If the firms require such disclosure, then a positive result under SHARIC would be enough for the RCC to include it in applicants’ internships or placement record.

If NLSIU’s vice chancellor were to overturn a conviction on appeal by the convict or the victim, under the new rules the RCC would contact the recruiters that had received a record of an applicants’ conviction, and get the fact of a conviction for sexual harassment removed from the record.

According to the full text of the amendment, as produced by the RCC of 2019 in its statement:

“(i) The RCC shall, prior to sending applications for internships, and subsequently, prior to placement, inquire of firms whether they require information about instances of sexual harassment on the applicant's record.

In the event a firm confirms, either on its own volition or subsequent to the said inquiry, that it requires such information, RCC shall disclose the following information to firms: namely if a RCC Class Member has been found guilty of ‘sexual harassment' as defined under the Code to Combat Sexual Harassment, NLSIU ["SHARIC Code"] or under the sexual harassment redressal mechanism of another institution or workplace.

(ii) In the event that the concerned Class Member requests the Vice Chancellor to review the Final Order under Section 19 of SHARIC code, the remarks sent across to the firms, disclosing the Final Order shall mention that the decision is pending review.

(iii) In the event that the Vice Chancellor under Section 19 of the SHARIC Code sets aside the Final Order, the RCC shall a) Notify all firms to whom remarks were sent earlier that the Final Order has been set aside b) Remove remarks relating to the applicant's SHARIC record in all subsequent internship applications or communications with firms.

(iv) In the event that the Vice Chancellor under Section 19 of the SHARIC Code confirms the Final Order, RCC shall

a) Notify all firms to whom remarks were sent earlier that the Final Order has been confirmed b) Amend remarks relating to the appellant's SHARIC record to state that the Final Orders have been confirmed in all subsequent internship applications or communications with firms.

(v) The burden of bringing the information set out in (ii)-(iv) to the the RCC's notice is upon the RCC Class Member concerned or any of the aggrieved parties to the proceedings, as the case may be, though RCC may act suo motu upon the information coming to their notice.

(vi) Rules (ii)-(v) will apply mutatis mutandis where the decision is submitted for review and confirmed/set aside by the reviewing or appellate authority in another institution or workplace.

Explanation I: For the purpose of these rules, the term ‘guilty of sexual harassment' will mean guilty according to the Registrar's final orders, as given under Section 17(g) of the SHARIC Code or guilty according to the publicly released Final Orders of another institution or workplace's sexual harassment redressal mechanism. ["Final Order"]

'Disclosure of information' means disclosure of all information which is made publicly available in the said Final Order, including information relating to the punishment and/or mitigating circumstances.

The term 'workplace' for the purpose of these rules will have the same meaning as defined under Section 2(o) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Explanation II: In the event that an alleged victim of sexual harassment requests the Vice Chancellor to review a Final Order finding a RCC Class Member innocent of sexual harassment, and the Vice Chancellor under Section 19 sets aside the Final Order and reconstitutes the SHIC to conduct a fresh inquiry, this Rule will apply to subsequent Final Orders resulting from the fresh inquiry.

This applies mutatis mutandis to review of findings made by the sexual harassment redressal mechanism of another institution or workplace.

Explanation III: Disclosure under these rules is limited to the publicly available Final Order of the Vice Chancellor/Registrar in accordance with Section 27(c) of the SHARIC Code. RCC and RCC Class members are bound to maintain confidentiality with respect to all other details of proceedings under the Code, in accordance with Section 27(a) and (b) of the SHARIC Code or the provisions dealing with confidentiality under the sexual harassment redressal rules of another institution/workplace, as the case may be. “

So why not just wait for the limitation on appeal to be over, and an actual “final” order, before disclosing a conviction to the firms?

The short answer: appeals take time. Way too much time for the amendment to have any real effect, argue proponents.

One 2019 RCC member, who requested to remain anonymous, explained:

I'll be honest. Under the law (2013 Act) and the Code proceedings are supposed to be completed within 3 months. In reality, proceedings have been ongoing for 6 months. SHIC change, victims and harassers graduate and the proceeding goes on. The Registrar has one week to give his final order and the VC has a month. This is after the three month time period. You can only imagine in reality how that may work out. Not imputing anything to the college administration but sadly all proceedings become like this due to conflicting time schedules and what not Internship applications on the other hand take a maximum of one week to process. If we were to wait for the VC's confirmation the person concerned would go ahead and get the internship in spite of being found guilty by the Registrar. After that networking around the firm and securing your place is not very hard. It's also embarrassing for the firm to withdraw an employment offer at such a late stage.

Taking into account these practicalities we decided to insert clause 2 so that applicants could be protected while the decision is pending review. It's an interim protective measure.”

What kind of force does this amendment have in NLSIU? Will the administration let it stay?

The RCC at NLSIU is an autonomous, unincorporated body of persons with a bank account separate from that of the law school, an email address that is independent and not officially provided by the law school, and only a faculty advisor from the law school.

It makes and amends its own rules and the administration does not have authority over it.

That said, the RCC has vested appellate authority in the VC. So if the VC sympathises with any specific case of conviction, or feels that the punishment is undue, the amendment might lose some force in such cases.

Some criticism on campus of the new rules has revolved around prior internal sexual harassment proceedings and whether those should be caught by the new rules.

  • In December 2016, a male NLSIU student allegedly sexually harassed a female student of his own class.
  • A few days later, in December, the female student lodged a complaint about the incident under the SHARIC code.
  • Inquiry into the complaint began in January 2017.
  • The SHIC was constituted in June 2017.
  • The alleged harasser and victim moved into their fourth year of LLB in August 2017.
  • Sometime between 1-7 September 2017 the five female members of the RCC of 2019 proposed the amendment.
  • The final submissions from the alleged harasser and victim closed on 13 September 2017.
  • The voting for the amendment took place in the RCC on 14 September, from 130pm.
  • The amendment was passed on 14 September, by a majority of 39:6.
  • Final orders in the SHIC investigation of the December 2016 accused student remain pending with the registrar, to date.

How was the amendment passed?

RCC: the discussion on the amendment were moderated over the course of one evening (13 September), by a non-RCC member Anirudhh Nigam.

The RCC member explains:

Our voting system is a combination of physical secret ballot and proxy. If you can't attend a meeting in person but want to vote you have to send a mail to the RCC ID therefore waiving your right to secret ballot. Most people chose to vote online. This was a voluntary choice and not because the date and time was inconvenient - the meeting was held after our university moot selection rounds and special repeat exams were over even though we conceived of the proposal more than a week before the vote took place

A 2/3rd majority of people present and voting either through secret ballot or proxy was needed to make the amendment pass.

One criticism is that the vote happened too quickly, since the amendment may end up affecting a person who was not subject to it when his SHARIC investigation began

The RCC member explains:

It's true we have a pending proceeding in our batch regarding two RCC members. And that is the incident that really brought about a consciousness and awakening in my batch regarding the issue of sexual harassment. You always discuss such incidents on paper but when it happens close to home that's when it really hits you.

However I would like to clarify that this amendment is in no way intended only to specifically target the RCC member concerned. The SHIC proceedings are at the stage of final arguments and the registrar's final orders will probably take some time to come.

Applications for internships opened in June this year. Hence the amendment has no effect with regard to that RCC member's job prospects as of now. I would also like to discourage this mentality that any legislative change that seems in favour of women is motivated by bias or a desire for revenge. We have a gender neutral Code and the amendment is intended to deter harassers of any gender, not only with respect to our batch but also set an example for junior batches. So there are no 'malicious intentions' involved here.

Student Bar Council president Aman Saxena adds:

It's not to target any specific person. There are a lot of cases that get filed. Sometimes the gravity of an incident brings about a change as it brings the issue to the fore, like Nirbhaya incident got 2013 amendments passed.

It does not mean they were to target the perpetrators as they are prospective. We need to see if it's a good policy in isolation.

With regards the specific incident, the case hasn't been decided. If that person isn't found guilty, these rules will not affect him. If he is, there's nothing wrong to it.

The amendments will directly impact him if convicted. But it will also impact anyone else who gets convicted from here on including junior batches who always adopt the existing RCC rules. The assumption that he is the only person who is undergoing SHARIC proceeding is wrong. There are multiple in the university, including from within their batch and junior batches.

Why make this amendment to the RCC policy and not to the SHARIC code itself?

Short answer: because it is not intended as a punishment in itself but intended as a consequence of a punishment.

The RCC member says:

The rule is not retrospective. And it's not a part of SHARIC. RCC is an autonomous body governed by its own rules. We had to pass this amendment because the Inquiry Committee does not have jurisdiction over our internship applications.

The amendment has been passed. But he has already applied to firms. And before the final order we cannot notify firms so as of now none of the firms he has applied to know about this. If the order comes out it will go on his February internship application. But his other internships are protected.

If the principle was to disclose complete antecedents or the character certification of an applicant, why restrict the disclosure to just SHARIC? Why not include other disciplinary offences under the DARIC?

Short answer: because sexual harassment deals with violation of bodily consent, which is a criminal activity in itself, which employers are in any case mandated to take action against, whereas DARIC is a mix of both civil wrongs and potentially criminal offences. Also, the amendment to incorporate DARIC violations in the RCC rules would have required a longer discussion, given the wide variety of actions it covers.

The RCC member explains:

DARIC in our college covers a wide range of offences ranging from possession of alcohol on campus to plagiarism to beating up someone in a brawl. It is my subjective opinion, which a majority of my classmates share, that the violation of bodily consent that takes place during sexual harassment is completely different than what happens in the offences covered under DARIC. Further under the law employers are specifically under an obligation to prevent sexual harassment. 'Sexual harassment' as an umbrella term is itself a criminal activity that makes the offender someone a sureshot threat to the working environment whereas DARIC includes a mix of both civil and criminal offences which may or may not make the applicant a person who puts the individuals around them at risk Further taking into consideration the fact that an amendment requires 2/3rds majority we thought that practically speaking, pushing for a DARIC amendment requires a different discussion and amendment proposal and it would be unwise to mix both. We suggested that students who wanted to include DARIC were free to move a separate amendment for the same

At the end of the day there are a number of policy reasons for pushing a number of amendments. We specifically chose to push for this because it's a cause we strongly believe in. In my opinion it's unfair to put the burden of pushing for a separate measure on us even though it may be equally relevant. You can't defend something that's not your battle to begin with.

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