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Why most AK Ganguly defenders miss the point: Politics & media are integral to the ‘trial’

Trial by media?
Trial by media?
Legally India reporter Prachi Shrivastava argues that, to date, the pillars of the Indian constitution have been remarkably efficient and fair in the investigation and reporting of the sexual harassment allegations against former Supreme Court Justice Asok Kumar Ganguly.

As AK Ganguly is reportedly mulling whether to resign as chairman of the West Bengal Human Rights Commission (WBHRC), in the face of continuing political pressure and a looming presidential reference to remove him, his defenders have been clamouring against the supposed trial by media.

A public interest litigation last week claimed that a football club had conspired with the intern to frame the ex-judge.

Recently a friend was upset with what he saw as the complete barter of the rule of law for what, in his estimate, is ‘speedy lynch justice’. He’s not the only one, judging by lawyers’ protests in Calcutta and Chennai, and defenders of Ganguly who are nearly as vocal as those calling for his removal.

Former Lok Sabha Speaker Somnath Chatterjee said last month that “it would be a travesty of justice” for the SC to go into its own findings again, after its first inquiry, adding that the government had no jurisdiction except to prosecute, and that it was obvious why the West Bengal ruling Trinamool Congress party was seeking Ganguly’s removal. “Punishment is by media? And, punishment by press conferences? And, by clamour in Parliament?”

A conspiratorial case

My friend’s (and presumably other Ganguly supporters’) imagined chronology of recent events: a former Supreme Court judge’s intern is hit by the “mysteriously” belated idea to deal with the memory of an alleged sexual overture during her internship with him a year ago. She describes the overture on a blog. From there on, the press backs her near unquestioningly and begins a trial by media, the Supreme Court loses sight of the need to act under authority of law and politicians make a meal out of the opportunity to bring down a judge who had not shied away from giving adverse rulings on them.

To my friend, the intern’s story had the potential to bring institutions crumbling down and alienate men from the feminist discourse. Why? Apparently because India’s “new feminist movement” had given her this power by being unwilling to doubt her version because of her gender and ostensible victim status.

“It is time that we injected some shades of grey into a discourse that has become too black and white to allow for a nuanced approach,” commented the friend – a wearer of black and white professionally.

Duly processed meat

On my lawyer friend’s jurisprudential radar, the “transgression of principles of natural justice” – “condemning a man unheard” was the most troubling element and “due process” was the cure that would fix it all.

A manifestation of the due process principle is the famous R v Sussex maxim: “Not only must justice be done; it must also be seen to be done.” Due process is, I’d like to believe, as much about justice itself as it is about removal of reasonable doubt about bias in a decision.

In the former intern’s case, with the presidential reference continuing as described by Legally India last month, due process is being followed procedurally nearly to the exact letter of law at the moment.

To assess what would best serve the ends of justice we’d do well to examine the reality of the case to date, instead of giving in to the temptation of treating the intern’s case as a jurisprudential playing field where due process operates in a vacuum.

Material on record

We have an intern who wrote a blog about her personally horrifying (alleged) experience with a former judge, seemingly seeking closure of an unpleasant past event, and with the stated objective to warn future interns. She told Legally India how the criminal justice machinery was never a considered option for her, it being “hopelessly inadequate”.

We have the report of a Supreme Court panel which was constituted under no known legal provision but which believes that if her version was true then prima facie “unwelcome verbal/non-verbal sexual conduct” by the judge towards her was made out.

And a criminal law expert told us that the possibility that the alleged “unwelcome […] sexual conduct” meets the standards of a penal offence is there but modest at best. (One commenter on Legally India, on the other hand, dismissed the intern’s allegation – of the judge holding and kissing her arm and professing love - as at best smacking of “ageism and prudery”).

And then we have the presidential reference itself – setting into motion the statutory removal of the former judge from WBHRC.

In light of these, which option best serves the ends of justice? If proven, should a man be sent to jail because he lost self-restraint, kissed the arm of and professed love to an intern, and abused his fiduciary relationship and access to young women students by virtue of his professional position?

Or, should the intern invest years and years of her life into a possibly harrowing legal battle, with no guarantee that at the end the Supreme Court will decide that the man’s alleged (or by then, possibly proven) behaviour did not fit the penal definitions of sexual misconduct, effectively making the victim look mistaken to a lay person.

Neither of the above are appropriate I think.

Seeing red

A Legally India reader I met in person recently, remarked on the Supreme Court sexual harassment allegation: “You guys have done a huge disservice to the Supreme Court as an institution by picking up this story.”

His ostensible concern was about compromising the independence of the judiciary at the altar of politics; a vision of terrified judges of the future fearing to take tough stances as Ganguly did in the 2G ruling and who will subserviently fall in line with ministers (law and telecoms minister Kapil Sibal asked the apex court to ‘deal with’ Ganguly).

I don’t completely blame our critic. We do live in times of a fierce battle between civil rights and the political class, after all, with the Supreme Court as the champion of civil rights. It’s not far-fetched to say that his concern is a credible danger.

And who has been the villain to put the institution in the line of danger, in this story? My friend would argue it is the intern who sought justice without approaching the judicial system, it is the politicians who are baying for the former judge’s blood to allegedly settle political scores or gain mileage, and it is the media turning a blind eye to the legal process in its bid for “speedy lynch justice”.

But I am afraid his argument is more telling about a professional hazard than it is about the larger picture of a civil rights battle: it belies the tendency to compromise human sensitivity, instinct and common sense in favour of the black and white letter of the law.

Black, white and grey

“Ask her to [expletive redacted] lodge a police complaint”, burst out my lawyer friend, perhaps wilfully ignoring the explanations in the intern’s original blog and interview of why she did not take that course.

“What took her so long [to come out with allegations]? What if the whole thing was a scheme to bring an honest judge down? What if, what if, what if?” my friend added.

His questions made my frustration grow at the uphill battle women victims of sexual misconduct face in this country. In the rare event that such a victim is brave enough to go public with an allegation, and irrespective of whether she decides to file an FIR and stand up to the inevitable victim blaming, victim shaming, dilatory wheels of justice, insensitive trials and penal provisions that reek of disbelief in women, why is our first instinct to want to add a layer of doubt to her version? And all in the name of some notion of due process in a vacuum?

“Many judges and senior lawyers whom I know, have made it clear that they will not take lady juniors, interns or clerks. That is what the lady in question has achieved with her dubious delayed tabloid/blog disclosures,” commented a rather well respected advocate on Facebook, unleashing the blatantly sexist side of this profession. Seniors are ready to openly flout the moral code of avoiding discrimination based on gender.

It is misogynistic to believe that by virtue of two X chromosomes a professional should be presumed a dishonest mischief-maker who is not worth the, statistically tiny, fear of false sexual offence charges.

It is also misogynistic to prima facie build conspiracy theories around a sexual assault victim’s testimony. Simple as that.

Material harm

The intern’s blog and her interview on Legally India, to the average advocate, may look like trial by media, but in reality this is exactly what the internet and fourth estate are meant to do: raise important issues, and not just those that a court has taken cognisance of.

Admittedly, the media (to date) has largely misreported the SC judges panel’s report of a “prima facie” finding of a statement disclosing misconduct, as an “indictment” or guilty verdict of Ganguly, but that perhaps has as much to do with the apex court and the Chief Justice of India mincing their words and draping their conclusions in legalese.

However, the presidential reference procedure it has enabled, is not by a long shot a trial by media, but a trial by a statutory inquiry committee, and before that trial the former judge has actually not lost anything before the law.

Sibal, West Bengal chief minister Mamata Bannerjee and other politicians did make stabs to encourage Ganguly to resign, even before such a trial, and the media is certainly not naïve enough to believe that being “deeply disappointed” was Sibal’s sole motivation behind pursuing this cause, with a difficult election year around the corner.

Sibal, after all, gave the following press statement four months ago: “Our intention is not to protect [lawmakers] but there has to be a balance. At times, a judgment [conviction] may be wrong which can be appealed against.” Sibal then spoke on an ordinance to protect convicted ministers from disqualification of political office. A minister open to the possibility of innocence of politicians “convicted” for offences which include even rape, cannot seriously believe that merely an “allegation” can be reason enough for Ganguly to demit office, can he?

But to think that this process was the wrongful politicisation of the pure legal issue of the judge’s guilt or innocence, would be as naïve an outlook.

The media picking up the intern’s perishable blog and interview, and the relentless follow-ups of the story, may have removed immediate agency from lawyers and judges, possibly to their ire, as well as from the intern.

But it has also made the SC take notice, constitute a panel and ask both sides to depose. The findings of the panel gave women’s rights champion Indira Jaising and a brigade of politicians the confidence to make the matter reach the logical end of a presidential reference – an outcome that would have been almost impossible to imagine just a few years ago.

The bigger picture: the media and politicians are as much a part of the legal system and Constitution, as lawyers and judges are.

We needed what some lawyers decry as systemic ‘wrongs’, not only to achieve the positive side-effect of an efficacious investigation and possible remedy, but also for legal eagles to take a hard look in the mirror and introspect whether their “black and white” outlook is always more conducive to justice than occasional shades of grey.

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