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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Presidential reference is looming on two other points apart from the sexual harassment a) him undertaking a private assignment b) travelling to pakistan without taking consent of the governor (which are almost proven in the light of hard evidence). That is on the behest of the letter sent by WB CM. So needless to say politicization of this case has taken place. (unfortunately LI has not reported this aspect of the Presidential Reference). So it is yet to be seen on what grounds exactly he will be ousted.
It'd be too naive (at this stage) for anyone to think that they have succeeded in any way towards the feminist causes they espouse. Therefore, legal recourse is essential apart from the media blazing because all those who have an axe to grind against that person will come up with their agendas and the real issue will be lost.
Who gives a damn what for-sale journos have to say about this alleged affair if the fundamental rule of law is preserved. Let the TV "journalists" go back to their parties in Delhi and selling access to politicians. And let SJ put up or shut up.
Thank you for your comment.
Again, it is not "non-misogynistic" to presume that if "self-preserving" and "risk-mitigating" men go that extra mile to show courtesy to their female colleagues, they still stand to lose their careers to such colleagues' innate "vindictiveness".
And by "extra mile" women are not exactly asking for moving mountains here but simply the minding of manners to the extent which most of our society, including the elite section, is not at all used to currently even in professional spaces.
Best wishes,
Prachi
I have obviously not been able to convey my point properly. I never said that female colleagues are 'innately vindictive'. That is you putting words in my mouth. I think most women I have met are wonderful human beings and colleagues. What I meant, and I hope you would not entirely disagree with me is that there are many good women and some bad women (as there are good men and bad men). It is not inconceivable for a man to come across at least one such vindictive woman in the course of a long career. It could be a colleague who is competing for a promotion, or it could be a subordinate who is smarting from a reprimand. But just one vindictive woman's false accusation could end a career if people are made to resign based purely on the verbal testimony of the accuser and so it is not unreasonable for even a well behaved and courteous man to be a little frightened and to mitigate risk. It is human nature. And being worried for oneself is not misogyny. From my limited experience, many decent, well behaved men are worried and most of them prefer not to articulate their fears in front of women to avoid being shamed by a politically correct discourse, that should instead be engaging them in a discussion. This I believe is unhealthy and counterproductive. Let me reiterate that I do NOT condone any form of intimidation or sexual harassment of women
Regards
For argument's sake, if you come across someone so vindictive, nasty and evil, surely they can make your life miserable irrespective of gender?
Or, taking up your argument, consider a woman's perspective: there are good men, and bad men, and the majority of men are good.
But it is not inconceivable that one male boss molests or assaults you, or says he won't promote you unless you sleep with him, or that he will make sure you'll never work in this town again. Of course, in reality such vindictive male bosses are not just hypotheticals but bosses who do actually exist, and according to all evidence, these cases happen a lot more often than the case you describe.
And apart from the day-to-day reality of working in a hostile environment, which many women do, those facing a vindictive male boss could also face a ruined career or even physical violence.
On the flipside, well-behaved men, as you put it, face being "a little frightened" and might "mitigate risk". Is that such a terrible trade off?
According to all statistics available I've seen (though only outside of India, as far as I know), the numbers of false complaints are dwarfed by actual incidents of sexual harassment, both reported and unreported.
The laws should therefore be about balancing the actual harm faced in reality, and not so much about balancing theretical hypotheticals, in my opinion.
You say you are ok with well behaved men mitigating risk. Then why make such a big deal out of Farooq Abdulla or naresh agarwal saying that they scared of working with/ hiring women. Is that not part of the 'not so terrible tradeoff'
As for statistics on genuine vs false complaints. This is a tricky topic. Statistics will only be able to tell us how many cases were actually proved to be false (not a very easy thing to prove). For most cases that end in acquittals, we really can't say as it is really his word against hers. So it is not possible to make an actual determination. So it would not be right to label the possibility of a false allegation as a 'hypothetical'
In any case the law should not be about balancing anything. It should be about an accused enjoying a presumption of innocence and a decent chance of defending himself. If you see innocent men suffering as necessary collateral damage in order to achieve a just society, well then thats a slippery slope. Why should one object then if the government brings in 'necessary' draconian laws like pota etc to 'balance' the 'actual harm' faced by the country
Stan, you hit the nail on the head when you say men prefer not to articulate their fears in front of women to avoid being shamed by a politically correct discourse, that should instead be engaging them in a discussion.
"Mitigate risk" should mean that every organisation conducts sexual harassment awareness training, that there is a sex harassment cell at every organisation, that male bosses are aware that certain behaviour is not cool and that males refrain from certain obviously problematic behaviour, including physical contact, coloured remarks, jokes, etc, and perhaps they also take some precautions like leaving doors open, not meeting in hotel rooms or other potentially uncomfortable places, unless they are 100% certain that there's no risk of it being misconstrued.
It really doesn't seem like that much of an ask, really...
You said " perhaps they also take some precautions like leaving doors open, not meeting in hotel rooms or other potentially uncomfortable places" Its interesting you say that. There is a news item in the Hindustan Times today on pilots violating standard operating procedures by not allowing female flight attendants to enter the cockpit. They are frightened and are trying to mitigate risk by doing exactly what you advise them to do. I would say this is madness. Even in a normal job it would be impossible to function if you have to think ten times every time you need to work late with a colleague or have a closed door meeting
' I did not mean that men wouldn't hire women, which is ridiculous and should be illegal' - It may be illegal but it is not possible to regulate a diverse labour market like India. Even in a country like the US with equal opportunities laws it is very difficult and cumbersome to prove discrimination. Maybe we can shift the burden of proof on the employer?
There is a real fear that is not being addressed as is evident in the case of the pilots given the stigma that results from a harassment allegation. This fear when shouted down in the TV studios of our very politically correct mainstream media is not going to disappear but is going to manifest itself in very unhealthy ways such as employers being scared of hiring female employees. Outraging over people merely reacting to an incentive/ disincentive structure has never really solved any problem
Basically nobody's testimony should be placed on a placed on a higher pedestal, either by the media or by the legal system. There should be a presumption of innocence. It should be accepted that sometimes it might just not be possible to tell who is telling the truth. And in those cases where it is conclusively proven that the accused is guilty there should be very severe action.
Please answer one specific question, what should be the legal remedy available to those who are falsely accused of rape/molestation?? Can you please cite any legal remedy under Indian laws where such false accusers ( when its proved in the court that accusations were false)
And by the way if you claim that feminism is all about equal rights, I want to know that little boys who are sexually assaulted , why they are not included in the definition of "rape victims" under IPC!
So you and your feminist friends while make a lot of hue an cry over a leching man making advances towards a woman or "inappropriately touching" a woman, but you never feel disgusted when little BOYS are brutally sexually assaulted and even killed in many cases? And if you claim YES you do care about them, show me a single article on your feminist platform getting concerned about their plight. I am sure there is none, but there are millions of such feminist nonsensical articles like this one on your forum.
And for a fact I will be called a troll either or a misogynist as you have done in past Kian for raising these issues, but then who decides whether you are misandrist or I am misogynist. You? Why? because its your forum?? Talking of dominant position eh?? I think let the readers decide for themselves.
Meanwhile you can continue with anti-men, feminist bigotry.
Surely there are a plethora of laws to convict rapists of underage children of either gender and for you to state feminists don't care about boys who get raped is worse than ridiculous...
Best wishes, yours
Kian
The social cost of an untrue claim of sexual harassment is unlikely to provide much incentive in an Indian workplace rife with sexism, casteism, racism and cronyism.
Thank you for your comment.
If all of us recognize that where there are several legal remedies available the aggrieved has a right under law to choose which one to pursue, what obligates SJ to get her blog statements tested through a criminal case once the presidential reference was already in motion?
If it is AKG who is aggrieved by her "untested" blog statements, he very well has a right to file a defamation complaint as much as she does to file one for a sexual offence, doesn't he?
Why is no one on the question of discharge of his burden to test the statements' authenticity, considering it is ostensibly him who has been wronged by the possibility of an untrue claim?
Best wishes,
Prachi
Neither AKG nor any other object of defamation is compelled to challenge the verity of a defamatory statement by filing a criminal or civil case.
In Hindu law, a statement that is not challenged can be deemed admitted, and this impulse to challenge is embedded in many people. (See, "The Argumentative Indian.") However, the Common law does not require such a response absent a duty to respond.
AKG is no more compelled to defend himself against SJ's public trash talking than SJ is required to respond to a Cheapie Charlie who whistles at her as she walks by. A good person need not address every piece of garbage said about him. The nature of SJ's blog assertions don't change this calculus.
I'm very committed on one point: SJ has shown a shocking lack of faith in the legal system which she has studied and of which she is presumably a sworn officer.
AKG is no more compelled to file for criminal defamation than SJ is compelled to file an FIR, particularly when she has other legal remedies available. Thank you for making my point!
If AKG need not deal with every piece of garbage said about him, then let us repose confidence in his ability to deal with the uproar on his own in his own way minus shrill calls from defenders of civil rights. Just as we have seemingly reposed that confidence in SJ's ability to cope up, by calling for a criminal case despite knowing all too well how criminal trials for offences against women proceed in this country. In fact I don't think that empirical knowledge leaves much scope for "shock".
Best wishes,
Prachi
Creating media pressure on a person to resign from his post is not exactly a legal remedy, doesn't prove anything. Of course, it will be if some legal journalists want to throw the judicial system of this country. Though I wonder what kind of whimsical system that will be when such journalists don't comprehend the basics of criminal jurisprudence with their misplaced sense of justice.
And I don't understand why SJ did not cooperate with the police when she has such wonderful brigade of lawyers backing her... I am sure they could overcome the inefficient and ineffective judicial process of 'this' country. After all we have also seen such trials getting over in this country within six months when it is of peculiar media interest.
but for your clarity Presidential Reference is not a "legal remedy". It is not equivalent to prosecution of a person.
Prosecution is done for a crime! A crime is a wrong against the society.
When a person is prosecuted he goes to jail or pays fine.
But when Presidential Reference is made for misconduct it is not a criminal proceeding but is rather a proceeding under the realm of service law, a disciplinary proceeding. He is made answerable to the post he is holding not to the person accusing harassment allegations.
I hope that is food for thought enough.
Why would you force her to go for another remedy when the law of the land does't?
Best wishes,
Prachi
a. Murder happens and the eye-witness chooses not to file a complaint. In France, this would be a crime in itself but in India it isn't. However, no one can deny it's morally wrong for anyone not to report a crime. The problem in India is we don't report crimes because of our own conveniences.
b. Before labeling a country or its people with 'misogyny' or 'patriarchal mindset' one should first exercise the legal remedies available to them. The State clearly does not prescribe or profess misogynistic tendencies when it is clear from the laws, after all you are not living in Saudi Arabia where women are not allowed to drive. Similarly, people can accuse and rant a lot about anything they feel but that is not proof enough when they have failed to exercise their legal right (as 'Dazed and Confused' has stated).
3. What about hundreds of other women who face sexual harassment and who are not eloquent enough to write it in a blog and then be able to have connections to bring it in media? The truth is nobody is going to achieve anything by circumventing the system in place, the faith in our already established institutions have to come up from effective use of the procedures and mechanism available to everyone.
4. On a personal level I think more people will rise to the occasion if she chooses to prosecute him, will stop a lot of conspiracy theories and detractors from thinking something is happening behind the curtains.
5. The fear psychosis that has been generated in people's mind that tomorrow they can also be made liable for something through a blog. You should understand that this is not a product of any anti-female mindset (at least not all of it) but the very nature of media and internet age that we live in. The bona fides of any person making any accusation using the easily available medium can only be strengthened by the follow up action and their conduct in the real world. That is by exercising their legal rights.
6. Let us not speculate upon the fate of such trial before it even commences. If people believe that the law is on her side then that should be set in motion.
Effective implementation of sexual harassment laws is not only in the interest of women, which is obvious, but also for men who complain that merit is overlooked in their career prospects against special favors.
On a concluding note, you are wrong when you think all the people who are supporting the due process are supporting the accused.
A reference by the President to the SC, for an inquiry and finding of facts, is what the law provides for.
In contrast, her allegations against Justice Ganguly have not been made under oath, subject to confrontation, or presented for adjudication.
According to press reports she is a non-practicing law graduate working for a foreign NGO, yet she feels empowered to disparage a legal system she has not even asked for assistance.
Stella James to the Wall Street Journal:
"It’s ironic I – being a lawyer – say this, but I don’t think Indian law, or our legal system for that matter, is equipped enough to sensitively deal with crimes against women."
If she believes this, she has a duty to make the system work.
Snowden had no option but to do as he did; there was no venue to hear him but the press. A lawyer puts on the coat every day and gets to work making an imperfect system work a little better. Stella blogs.
I hope she gets the relief that her steely resolve deserves.
1. Please refer to the words 'many good women and some bad women'... Would it then be logical or fair to let things be and let the 'few bad men' act however they wish to? Because I have unfortunately experienced that the few bad men are not exactly 'few' in number and unless there is a stick somewhere, there is no reason for them to behave except for their 'innate goodness' which in the last 3 years of my professional career is something i have found seldom.
2. Are you blind enough to realise that among other reasons (such as i am horny or you are pretty enough for my tastes or i am bored) women are sexually harassed for exactly the same reasons you claim the men 'might' be harassed in the future?
3. Unfortunately, i have personally seen near and dear ones in both scenarios of being rightly accused or being vindictively accused and being a lawyer i can safely say that it is not as easy to prove these charges as people think. There is no 'presumption' in reality and if someone is known to be innately good, people do not believe them to be that sick. So after watching both sides in action, i really do feel that if you know how to behave, you don't need to worry... if you don't know how to behave, we do need these laws to force people to behave.
4. I am personally in a situation where i may be a potential target of sexual harassment in the coming shuffle of power and instead of being as courageous as SJ, i have started looking for other jobs.. Not because i am afraid of filing a complaint.. NO! I would be the first one to complain i such a thing happens, but i don't think i have the courage to stand first the assault itself (trust me, even the prospect of going through the trauma is terrifying), then the sickening character assassination and being doubted at every stage and then the consequential destruction of career prospects and public image... is this not what you guys are afraid of? Unfortunately i am afraid of it even though i am the potential victim and i have these so called favourable laws on my side.
Can you spot the irony in your line of thinking or are you too misogynistic to even entertain the possibility that such laws are required and still are grossly inadequate if mentalities like yours still exist?
P.S. @Prachi... you articulated a thousand emotions i have been feeling since the misogynistic outpour this case has resulted in!
Now, appreciate this: just like "[you] don't think [you] have the courage to stand first the assault itself (... even the prospect of going through the trauma is terrifying), then the sickening character assassination and being doubted at every stage", men are scared of the exact same thing when they think of a false case. Recently, a man jumped off a rooftop as he couldn't take the false charges and social shaming anymore, another man got acquitted of a false charge of "rape on the basis of promise of marriage" (although the judge made moral comments and attracted severe criticism) and another man was acquitted of a false dowry case after 9 harrowing years of trial and interim adverse orders.
I am not saying I know what is the right solution - there seems to be none, except building awareness and imposing strictest punishment in case of convictions. I am merely saying men also have fears. I agree with you that a large no. of men harass women. Personally, I have attacked such men, including physically (just so that you know I am committed to women's safety from the bottom of my heart). Of course, I can never understand it "exactly" from a woman's perspective (no man can), but I do request that you always nip any harassment in the bud by confronting the harasser (and even file a FIR and internal complaint to create pressure). If you let career fears shut you up, you will remain a victim as your new office will not be any different and your old boss may also shift to your new office.
What I did say was the following
"Basically nobody's testimony should be placed on a placed on a higher pedestal, either by the media or by the legal system. There should be a presumption of innocence. It should be accepted that sometimes it might just not be possible to tell who is telling the truth. And in those cases where it is conclusively proven that the accused is guilty there should be very severe action" - That is my opinion and you may disagree if you want to
I feel really sorry about your personal situation. I am not for a moment saying it is easy for you. I think character assassination be it of a woman or of a man is a horrible thing. I also understand that there are many sides to this discussion with no easy answers
I think what I primarily wanted to say was that based on my interactions with other men (the non-molesting courteous kind) as well as news items like that Hindustan Times report (about pilots refusing to allow female flight attendants to enter the cockpit in the absence of a copilot - this refusal is against standard operating procedures and jeopardizes the passengers' as well as their own security), I have come to the conclusion that many men are scared that one day they may be accused falsely and no one may believe them. Most men would find an accusation of harassment very devastating. Also, I have noticed that many men are too scared of articulating their real fears in front of women preferring to just say the politically correct stuff that they would want to hear. I don't think shouting - "how dare you be scared! you misogynist!" really helps (that's what the media did when a senio minister recently said he felt scared). It will just lead to the fear manifesting itself in unhealthy ways such as picking a less talented male job applicant over a female one.
I completely agree with the point that Stan is trying to make.
There is a distinct possibility that decent and successful men who have strived throughout their life in order to establish their reputation and career would want to avoid the risk of having it all ruined by a false/motivated allegation (I go to great lenghts to clarify that I am in no way imputing that the allegation leveled by the intern at Justice Ganguly is in anyways false or motivated and I condemn any violent/inappropriate behaviour towards women in the strongest terms possible)that might be made against them not because of the failure on their part to show basic courtesy to their female colleagues but because of certain vested interests seeking an easy way out to bring a successful man down. (And the handling of this episode clearly indicates that sustained pressure put from all quarters on the basis of only an unsubstantiated statement has completely stripped a man, who spent the best part of 45 years in establishing his reputation and name as an eminent jurist, of his dignity without even giving him a chance to defend himself).
It has also sent out a message that the only thing you have to do, to force a person holding a high office or who is designated to be nominated or elected to a high office to resign from that office or give up his right to that office, is ensure that an allegation of moral turpitude is leveled against him, is given a lot of publicity by media and on social media platforms, supported by politicians and eminent people from other walks of life looking to achive their own vested interests.
Stella James placed her byline on a blog post. She has given interviews to foreign and domestic press and has been cited by name. The prohibition against naming is only available to a rape or harassment victim only available once an FIR has been filed or the formal justice mechanism otherwise activated.
This whole "SJ" daintiness is disrespectful of the strength it took to put her name to her accusations.
Of course, as I've written elsewhere, I think her allegations are unworthy of legal redress by the criminal justice system, and that her allegations have spawned a witch hunt that perhaps exceeds her intentions.
But Stella James has not hidden behind a veil and we should pay her the respect of using her name.
Subsequently, however, I'm not sure if there's any benefit in naming her over and over again, to the point where any Google search in the next decades will turn up these stories as the main hits, and where her name will be a synonym in legal circles for the case and little else. I think to most papers it therefore just seemed like the 'decent' thing to do.
I think legally the situation is a little more complicated. If she did file a criminal or sexual harassment case, as far as I understand it, the media would be prohibited from using her name, is that correct? As far as I understand, even a victim's consent wouldn't allow a paper to identify her in such a case. But if that were to happen, would archival articles mentioning her names also have to be redacted?
As much as I think, the Indira Jaising's outburst revealing his name was unnecessary, even before a proper enquiry. (The SC committee Report was a one-sided Report.) Though everyone in the legal fraternity knew who the ex-judge was,revealing it officially puts a huge question mark on our justice system itself. The media doesn't do that with their own i.e. Press Club,Blore encroaching upon Park land or Advocates vs Press riot in Bangalore,etc etc
“Just give a dog a bad name and hang him” seems to be the motto of our country these days and it is absolutely scary to imagine ourselves in the shoes of someone against whom any serious allegation is made. Investigative journalism is rarely seen. Analysis, if any, is like this article or the one written by Mr. Kanekal (www.legallyindia.com/201312094173/Legal-opinions/internjudge-nikhil-kanekal-opinion-conspiracies-arnab-goswami). We desperately need a fourth estate that we can rely on for
newsfacts.@ Prachi: This is not a comment against you per se, but your article makes points that are difficult to digest for, in your words, the “average lawyer”. You know, just like any average lawyer will be amused - or offended - if someone says criminal defence lawyers help criminals!!
Quote: You say "hearing" means a proper and meaningful hearing / trial, but you neglect to define "condemned", which in this context means condemnation by law, not by media.
Legally, the media and politicians are allowed to condemn whoever they want, subject to defamation and sub-judice contempt laws. Doing so might be immoral, or undesirable, but it is not a 'trial' by media, in any legal sense: it is what the media and politicians do, for better or worse, and it is fully accepted and permitted by the legal system.
Likewise, there's no legal obligation (in India at least) for a victim to file a legal complaint, even if she is a lawyer herself, just like there isn't a legal obligation on AK Ganguly to file a defamation complaint if, as he alleges, the allegations are untrue.
Whether someone files a complaint is actually completely up to them, and ultimately it is purely a matter of strategy and inclination, which could and should include issues such as:
can I win this case,
do the costs of fighting it outweigh the potential gains,
do I have the time and inclination to babysit this case for the next couple of years,
can I afford the lawyers,
can I afford the fight if it goes to the SC,
do I want to pause my life and put up with the media circus and coverage of the case for X more years,
do I even want the remedy the law proposes (i.e., jailtime, a fine, or both, etc?)
will my family be cool with it,
will media support me in the fight or will there be a backlash,
will the other side fight fairly and cleanly?
If any client (including a company) approached you with a potential legal case, would you not be under a duty to go through all these above options with them before deciding whether to proceed, rather than mandating that the only course of action is to 'file the case or shut up'?
I assume no commenter on LI has actually discussed or considered all those points with the intern (or with Ganguly).
Dazed & Confused wrote: Quote: IMHO, in the #InternJudge case the system has worked as intended. If you'd like this case to have gone a different way, you should blame the system, rather than the intern.
And finally, why is no one blaming AK Ganguly for (finally) resigning just before a presidential reference could actually have authoritatively exonerated him or found him guilty, rather than avoiding the process at the last minute? If the intern had an (alleged) duty, does he not have a duty to face the (legal) music and see the system at work too?
The issue of a man condemned:
As a principle of natural justice, any adverse order must be preceded by a meaningful analysis of the facts and the views of the adversely affected persons must be meaningfully considered. Since various commentators and opinion writers have harped on the SC administrative committee’s prima facie finding, the average lawyer will certainly say that it does not prove anything until the allegations and averments are judicially “proved” in accordance with procedure established by law.
Should the media be blamed?
I agree that the media and politicians are allowed to condemn whoever they want. By the same token, people may dissent and point out the holes in an editorial, especially when it is felt that the society may be swayed by an opinion that is inaccurate from certain perspectives. (Personally, I never said that a trial by media is a problem or is unjust.) I think people who are saying that the judge is being condemned unheard are not against the media, but they are rather against the authorities. It appears the SC administrative committee and its findings have not found much favour with a large section of society.
Should the “intern” file a criminal complaint?
She is not obliged, legally or morally, to file a complaint. It is incorrect and unfair to expect that the intern should have done so / should do so now. Of course, nothing prevents the Courts from trying the judge and treat the victim as a hostile witness.
Why are people not blaming the judge?
Most people are! However, the way this matter has been handled and the way the media has reacted (although there’s nothing wrong with that), has caused some people to shift their focus to advocating the right to be heard, presumption of innocence, and the need for due process. These are most sacrosanct to an average lawyer, especially in India, where the pre-Independence era and the Emergency era saw the massacre of these principles. If the article was about the behaviour of the judge and the timing of his actions, people would have made observations on his conduct.
Why are men saying they are scared of false complaints?
If character is lost, everything is lost. Men are scared of their character and reputation being easily tarnished. Some men have expressed concerns about the impact such complaints may have, if the complaints are not examined before the accused is “condemned” in some form or another. If due process was followed, one would say, “Hey, if you do shit, you’ll eat shit”.
I think the best solution is what you suggest above, Kian. Social awareness and conduct rules.
It feels right and just to walk the streets with candles, but at a certain point we should actually look at facts and procedure and the mechanics and arguments of delivering justice within a system.
I'm not sure she intended this, but Stella James has certainly shown the value of asymmetrical warfare in a legal battle. Ganguly's flat-footed response. - including his pathetically drafted letter - round out a picture of inter-generational differences in legal practice that many might find worth discussing.
Btw, there are non-Bengalis this fist fight, with ASG Jai Singh and Minister Sibal as key brawlers.
Just Kidding! but as a common man ,i am curious why we can't have more young and energitic Judges like the US and other western countries? is it because wisdom comes only after you have sat on a few hundred cases and have been the cause for then to be languishing for many years ?
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