Tag Archive for Sexual harassment at work

If you can’t join ‘em, beat ‘em

woman- journalist-sexual -assault

The media trial that sought to vilify the complainant in the Tejpal case would reverse the currently increased receptivity to women’s complaints of sexual abuse and restore the public culture of silence against sexual violence

By Ayesha Kidwai

Over the last one year, since the rape and murder of a young woman on a Delhi bus, the Indian public sphere has been repeatedly rocked by reports of egregious sexual harassment and sexual violence against young women, usually committed upon them in the course of their work. What has been unusual is not the occurrence of these incidents, but the fact that so many of these incidents have become complaints, materialising from the crisp backlit text of email, blogs, and the social media on our computer screens into brutally-thumbed and casually bandied-about complaints and depositions.

Public institution after institution — the judiciary, the media, and academia — has felt the impact of this unanticipated shift. But ever since the problem has gotten off the bus and knocked insistently at the door of whichever institution, one considered to be one’s home, the initial enthusiasm for the bracing winds of social change has abated. Three recent journalistic pieces — one by Manu Joseph in the Outlook and two by Seema Mustafa in The Citizen and the Statesman — show that the strategy to contain the contagion of complaints have evolved in disturbing ways.

Quite obviously, the complainants lie at the heart of every problem, but dealing with them is not an easy task. For one, they do not cower behind the anonymity that is their right under law, but never ever get; for another, even when they have been subjected to the most public violations of privacy, confidentiality, and due process, they do not back away from their complaints. And since the law holds that a survivor is her own true witness in the allegations she makes, the best way to discredit her is to cast her asunder from her words. In Manu Joseph’s view, this separation is effected by what the Grand Hyatt Hotel’s elevator landing saw (i.e. CCTV cameras in the landing areas outside the elevator); from Seema Mustafa’s version of what the Elevator Landing speaks to, a woman’s right to voice even a perceived grievance is denied to her.

While Joseph’s and Mustafa’s pieces have been extensively critiqued in the electronic and social media (most admirably by the Network of Women in Media [NWMI]) for the many breaches of ethical professional journalistic conduct they embody, what allies them most is the lengths that both go to elide the word ‘complainant’, or the more popular word ‘victim’, from the lexicon of their (this-is-not) rape narrative. As Pratiksha Baxi points out, in her Kafila piece, Joseph’s use of Young Woman for the complainant is a reference that does “not evoke the popular image of the innocent rape survivor”.

It is clear that for Joseph, there is only one set of victims here — Tejpal and his family. It is he who has been “destroyed” and it is his family who has been “evicted” from their home, as his wife suffers the “indignity” of defending her husband’s “consensual” relationship. The complainant of course has not suffered in the same way: though she has had to move as well, it is only to a “new home on the outskirts of Delhi”. There is no mention of her mother at all, and her father cannot be told that Tejpal raped her because of his ill-health; in short, no grieving kin or friends. And while she is “in a delicate mental state”, this fragility is not because of the assault she has been subjected to, but because she is “consumed by the intense fear” that her character will soon be put on trial. And lest we begin to empathise with her, we should know that “details of her past are already in the air” i.e. she has a past that needs some worrying about! Comparing this to Tejpal’s ordeal of sitting in a small cell in a Goa jail, we know which one of the two could qualify as the veritable zindaa laash, were it not for Tejpal’s love for his journalistic craft, embodied in his ceaseless striving (through Court petitions) for stationery supplies in jail.

Mustafa’s characterisation of the complainant is even more partial than Joseph’s. Since, unlike Joseph, Mustafa does not appear to have even bothered to meet the complainant (whatever happened to the journalistic code of checking and balancing sources, we wonder), it’s only the woman on the CCTV footage who she describes as the “alleged victim”. This purposely cruel phrase — more so because Mustafa refers to Tejpal (only once) with the contradictory ‘”alleged accused” (note, not “alleged perpetrator”) — discredits every part of the complainant’s deposition, even those incidents that the Elevator Landing couldn’t see, most importantly the act of the rape itself.

The choice of this phrase as the descriptor (although the usage of the term ‘alleged victim’ to mean complainant does exist in US legal parlance, it is novel for Indian journalism) then allows Mustafa the latitude to interpret what the CCTV evidence should mean for the case: since the woman did not show “visible (to Mustafa) signs of agitation”, and because she chose not to take the stairs in the second incident complained about, Mustafa concludes that “the jury is clearly out on this one.”

Both Joseph and Mustafa have stoutly defended their positions by invoking the criterion of objectivity, but one is puzzled as to how that criterion is served by their unwillingness to question information fed to them and which is clearly directed towards a “media trial” of the complainant. Surely, intrepid journalists like these two should have entertained enough skepticism about such information fed to them and carry it over to the copy they generated. Nevertheless, even if we were to assume that every alleged contradiction pointed out in these articles are “facts”, as Mustafa asserts, surely there has to be an understanding that any “fact” is always interpreted as one within a particular context. The context here is one of sexual violence, for which there is ample evidence that the trauma causes confusion, numbness, memory lapses, etc in the victim. In the universe of this discourse, it is no longer a ‘fact’ that recollection and narration of a sequence of events must be instantaneously seamless and fluent for it to be credible.

The burning question is why Mustafa and Joseph have done this? Are they misogynistic ‘supporters’ of Tejpal or fearless worshippers of fact and intrepid journalism? While the latter question may be good for an author’s self-image, and the former one can be dismissed as presupposing too tidy a critique, the real issue is a general failure amongst the professionals to come up with an adequate response to what the changed mood in the middle class demands. Mustafa and Joseph’s failures are just repeats of ones that we have witnessed over and over again, and each profession has plunged into a crisis when a colleague has been accused: How does a ‘senior’ professional approach the fact that some young woman has gone and complained about something that wasn’t even a grievance just a few years ago? After all, it is ”her’ word against ‘his’ and we know him; and while he may have his faults, he has done so many good things, and he is above all, secular. In any case, why are these outsiders, this “bunch of feminists” getting so involved in these matters (which are always so stippled with grey when seen from our side)?

For an outsider feminist like me, the answer is obvious: no one but this bunch knows what to do when a complaint is made from within one’s own kind. When the complaints have been made from within academia or within the judiciary, it is this bunch that has fought for them to be addressed, protested and thwarted the misuse of hierarchical power and its machinery of slander and intimidation, and reminded their professions that the ideal of equality must first be expressed in the creation of conditions conducive to its access. In doing so, they have imbued the phrase “let the law take its own course” with substantive meaning.

It is time for some of our journalist friends who have long written about women’s empowerment to emulate a fraction of what Indira Jaising and Vrinda Grover did in the complaints against the judiciary. Disputing their and other activists’ rights to dispute one’s own article may serve to create a comfortable ‘Us vs. Them’ binary that facilitates self-justification, taking feminists names along with the website-hacking Hindu Right may exaggerate the sense of injury (and dare I say it, “alleged victimhood”), but using the suicide of Khurshid Anwar as a stick to beat all feminists and complainants with does not serve the memory of a man whose commitment to the cause of women’s emancipation and equality has been cited as proof of his innocence.

It may be thought that the fact that the court has already taken a position on the Insightful Elevator Landing renders the current debate irrelevant, but this would be a terrible mistake. Across the spectrum of professions, what is at stake here is the fundamental right of a woman to make a complaint, and the vilification of the complainant that we are witnessing currently targets the all important court of public opinion. The increased receptivity to women’s complaints that we have witnessed in recent times must be reversed, and what better way to do it, but to turn the woman against her word. If complainants are no longer as readily believed, if feminism’s misdeeds begin from supporting such untrustworthy women and end with draconian punishments like the death penalty (which they were in truth the first to oppose), the re-creation of a public culture of silence about sexual violence can perhaps be hoped for. It needs no guessing as to whose interests this aspired to future will serve, but must we be doomed to dream the nightmares of the communal misogynistic right?

Ayesha Kidwai is a professor of linguistics at Jawaharlal Nehru University

Tejpal manipulating public opinion to sway judge

Tarun-Tejpal

By asking to make the CCTV footage public, Tejpal hopes to sow suspicion about the complainant’s motive and her character

By Kavita Krishnan
Tarun Tejpal’s demand to make the CCTV footage public is, in fact, a call to the general public to be voyeurs, examine the woman (complainant), place her smile, her demeanour and her gait on trial, ready to declare her guilty if her conduct does not conform to the 70s Hindi film stereotype of the ‘raped woman’.

Tejpal wants the public (through media) to try and declare him innocent. He wants to use the media, including social media, to sow suspicion about the complainant’s motive and her character. A step towards this has already been taken by his friends who have sent mails with her photos asking – “Check out her pose! Is she traumatised? No! Is she happy? Yes!”

We, in the women’s movement, can only hope that the courts will not behave like the ‘court of public opinion’.

For, if a woman is brutalised, her bloodied body/corpse available as incontestable proof of her victimhood — in conformity with those Hindi movie images we just talked about — then a court MIGHT hand out the death sentence based on ‘public opinion’. I use the word ‘MIGHT’ because here too, for a Bhotmange or a Manorama or a Soni Sori, the brutalised body is no guarantee of public opinion or courts perceiving the heinousness of the crime.

In cases where the victim doesn’t have a brutalised body to display to gratify voyeurs — the ‘peanut-crunching crowd’ — the courts are again all too likely to mirror public opinion and declare that the woman doesn’t really look or behave ‘raped’ enough.

Even when courts appear to be ‘sensitive’ to women, there’s a catch. There is one landmark verdict of the Supreme Court which holds that a conviction can take place even on the ‘sole testimony’ of the complainant. However, what the verdict actually said was: “It is conceivable in Western society that a female may level a false accusation as regards sexual molestation against a male”. However, “A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred” and therefore isn’t likely to lie about rape! The detailed argument in this verdict has sickeningly sexist imaginings of why ‘Western’ women are likely to lie about rape

Not surprisingly, this notion of ‘chaste Indian woman’ versus ‘loose Westernised woman’ is what Tejpal’s defence is relying on. In his bail plea, lawyer quoted this verdict to argue that she could not be raped, the sex must be consensual because the complainant is “a liberated, emancipated modern woman”.

So, women can only HOPE — against hope — that courts will stand aloof from public opinion, and will deliver justice on merits of the case rather than on jaundiced notions about how raped Indian women are supposed to behave, as opposed to the loose, liberated, modern women…

Tejpal claims there’s no evidence against him, that the charges are flimsy. The charges are by no means flimsy as he suggests but rather, there’s an embarrassment of weighty facts — straight from Tejpal’s own words — enough to make this a very serious case.

Tejpal claimed in an email to his friends that the whole thing was “an incredibly fleeting, totally consensual encounter of less than a minute in a lift (of a two-storey building!)”. However, based on the CCTV footage, the charge sheet establishes that the lift took much longer than usual to make the two-storey climb, certainly much longer than the ‘less than a minute’ claimed by Tejpal.

This unwarranted time in the lift the first time and the footage of him taking her into the lift on a second occasion (a second encounter which Tejpal’s email to friends didn’t mention) is certainly grounds for invoking Sections 341 (wrongful restrain) and 342 (wrong confinement) of the Indian Penal Code (IPC).

Moreover, his own ‘apology’ email established his admitting to invoking his status as her boss — though he claims to have retracted it. The very fact that he admits to invoking it to overcome what HE calls her ‘clear reluctance’, goes to show a strong basis for invoking 376(2) (f) (person in position of trust or authority over women commits rape on such women) and 376(2) (k) (rape of a woman by a person being in position of control or dominance over the woman) IPC.

And the testimony of several of the complainant’s colleagues that she told them immediately after the first episode that she was assaulted, and of course her own complaint that has remained stable and unchanged while Tejpal’s has mutated time and time again, are pretty strong grounds for invoking Sections 354 (assault or criminal force on woman with intent to outrage her modesty) and 354-A (outrage modesty).

However, though these are undeniably strong grounds, the matter is sub-judice and it is for the court to pronounce him guilty or not.

Finally, Tejpal claims that his arrest is “an early sign of the inherent fascism of the right-wing that will target its detractors in the most sinister and underhand ways, using all the government machinery at its disposal. This is a warning shot across the bows of all liberals and opponents of communal politics. It’s a crying shame that a major party that is bidding to rule the great pluralism that is India is imbued with no tolerance for dissenters and critics, of whom I certainly am one.”

I know neither Mr. Tejpal nor the complainant personally. I know them both from their work as journalists and public intellectuals. And I can say: Mr Tejpal, you don’t have to be male and a senior editor to be a ‘dissenter and critic’ against communal politics. The complainant — a young journalist who has done courageous and forthright journalism — is no less a dissenter and a critic. And we, who stand up for her rights, are no less dissenters and critics.

Tejpal trivialises the anti-fascist struggle by trying to use it to demand impunity from accusations of rape. Being a dissenter and a critic doesn’t provide us with some kind of AFSPA-type shield to being prosecuted for rape.

Can we please keep the word ‘draconian’ confined to laws like AFSPA, MCOCA, sedition and so forth? The new rape law is NOT draconian

The new law very correctly expands the definition of rape and provides graded punishment for different types of sexual violence; and it very correctly states that consent cannot be presumed without a clear YES, ‘by word or gesture’ from the woman. These are not draconian provisions. Ten years, for the compound crimes Tejpal is accused of, is not necessarily excessive. It should jolt us that Tejpal’s friend can refer to what he is accused of as a ‘mere pass’. Even a ‘pass’ is now sexual harassment. And holding a woman against her will in a closed space, disrobing her and forcing your finger or tongue inside her private parts is not a ‘pass’ — and it’s downright scary that some can think of it as such.

The same pal of Tejpal’s said, chillingly, that if this is rape, 50% of editors and CEOs will be in jail for rape. Do editors and CEOs (Tejpal seems to think these are all male) really see it as their entitlement to do these things to their woman employees?! If so, it reminds me of the sense of entitlement that Bihar landlords used to expect, as their due, from Dalit woman workers in their fields in the 1980s. Those bosses who think women have to submit to such treatment must indeed be in jail.

I am willing to discuss, in a general context, the need to retain some discretion for the judge in sentencing, but I’ll do so in a context of concern for justice for women, so that courts should not be deterred from convictions and discretion should not move from the judges to the cops. And I’ll discuss these when we have some evidence that the new law is indeed acting against women’s interests in this regard. To use those concerns and debates of the women’s movement to paint Tejpal as a victim is abhorrent.

To those who accuse feminists of defending a draconian law to play ‘media darlings’, allow me to point out that the women’s movement has consistently — on the same media — articulated and defended the UNPOPULAR positions against draconian provisions of death penalty and lowering of the age of juvenility and raising the age of consent.

We have interrupted the media’s self-congratulatory narratives on Tejpal or Asaram to remind them of their own double standards on Manorama, Kunan Poshpora, Soni Sori, countless Bastar rapes, rape of Dalit women in Haryana and so on. The same activists who make use of a few minutes in the media to counter the insidious campaign of vilification that Tejpal and his pals are carrying out against the complainant, have also spoken — again in the face of abuse and hate speeches — against the hanging of Afzal Guru and the conviction of Shehzad in the Batla House case. We have made the women’s movement’s dissent and outrage heard against the custodial killing of the December 16 rape accused Ram Singh inside Tihar jail.

I am one of the handful of people who have, after carefully examining available evidence, rather than the feverish imaginings of a sexist media campaign, questioned the obnoxious, appalling Aarushi verdict, which was a ‘media trial’ if ever there was one. A secular friend, who today accuses me of participating in media trials of ‘secular’ men accused of rape, was only too happy to repeat the prejudiced misinformation peddled by the media in the Aarushi case, warning me to stick with public opinion rather than my own assessment and conscience in that case!

I have also spoken AGAINST ‘potency tests’ for Asaram and Tejpal. I hold potency tests to be just as demeaning, unscientific and humiliating as a two-finger test for rape survivors.

What about bail for Tejpal? I believe bail is a right that all undertrials are entitled to. I, along with many others, have thanklessly struggled for bail for NOIDA workers, Maruti workers, held on far flimsier grounds. Soni Sori got bail after years of incarceration. Many of my own comrades languish in jail without bail on cooked-up charges relating to mass movements led by them.

In the case of those accused of heinous crimes, courts tend to deny bail irrespective of how flimsy the charges are. And this has nothing to do with the new rape law. It has been the case long before last year. Tejpal, therefore, cannot claim he’s being denied bail because of political vendetta or a ‘draconian’ law. Rather, if at all he gets bail, it will be because he has a posse of lawyers and he is viewed as ‘respectable’ and ‘respected’, unlike your average worker or slum-dweller or common man/woman accused. And if he gets bail, I would not oppose it.

The very phrases ‘media darlings’, ‘BBM-ing feminists’ and so on are redolent of rank sexism. We do the cause of democracy and secularism a grave injustice by resorting to this manner of campaign. Tejpal is entitled to a defence, surely. But we cannot allow the complainant to be subjected to a moralistic, voyeuristic pillory on the pretext of his defence. She is being put through hell, has had her mindspace and professional world turn from a zone of comfort and achievement into an ugly space of abuse and jeers, not because of her own actions but because she made the hard decision to complain about rape by her boss. This is the tough, painful world of rape survivors.

For those of us who ask why we activists cannot remain ‘neutral’, survivors and complainants get through this hell by relying on the support of the women’s movement. So, yes, we are not going to stop supporting rape complainants because the accused happens, on occasion, to be part of the secular or democratic camp. That’s because democracy includes women’s rights.

Tarun Tejpal’s Press Statement 18.2.2014:

“If conclusive proof was needed of the political vendetta that has been
unleashed against me, under the guise of a sexual molestation
investigation, it has been emphatically provided today. In a blatant
attempt at twisting and concealing the facts, the Goa police while
filing a 3000 page highly spurious charge sheet, has not presented or
handed over the most crucial piece of evidence in this case, the CCTV
footage of the incident

In my first and only press note of November 22nd 2013 I had urged,
“the police to obtain, examine and release the CCTV footage so that
the accurate version of events stands clearly revealed”. I said this
at a time, from Delhi, when I had neither accessed nor seen the
footage. But since I was the man on the spot I knew the truth of what
had happened.

It is violative of due process, to not make all collected evidence
available to the accused at the time of filing the charge sheet. In
fact, receipt of the footage is what we have been impatiently waiting
for since the last three months. This duplicity is in keeping with the
sinister and motivated political vendetta that is being pursued.

I have been in jail since November 30th simply because the goa police,
clearly acting under the orders of their political bosses, have
refused to release this crucial footage of the relevant days, 7th and
8th November. This entire case hinges on the 130 and 45 seconds (as
per the charge sheet) of contested time which can be brought to light
via the CCTV footage. The goa police know their fabricated case will
collapse the moment the footage is revealed and compared with the
‘testimony’ of the alleged victim, on the basis of which the Goa
police filed it’s FIR under draconian provisions.

As it were, I viewed the relevant footage of both days whilst being
‘held’ in police custody and the footage clearly validates me. The
fact is most of the officers in the crime branch know there is no
case, and have said as much to me. Even so the IO has been pursuing an
agenda spelt out for her by her political masters, totally violating
the principle of police neutrality.

I’m afraid what we are witnessing here is an early sign of the
inherent fascism of the right wing that will target its detractors in
the most sinister and underhand ways, using all the government
machinery at its disposal. This is a warning shot across the bows of
all liberals and opponents of communal politics. It’s a crying shame
that a major party that is bidding to rule the great pluralism that is
India is imbued with no tolerance of dissenters and critics, of whom I
certainly am one.”

The Cost of Justice

Rina Mukherji-1

In 2002, Dr Rina Mukherji, then a senior reporter working for The Statesman complained of sexual harassment against Ishan Joshi, the news coordinator for the paper. On October 12, 2002, she was fired from her job.

Dr. Mukherji, then approached Network of Women in Media in India (NWMI) , the West Bengal Commission for Women and the Labour Commissioner. The Statesman refused conciliation proceedings and the labour suit moved to the Industrial Tribunal against the management of The Statesman . Ten years later, on February 6, 2013, the Court ruled in her favour. Rina Mukherji recounts her struggle for justice in this first person account

A full decade. That is the amount of time I have taken to win justice. More than three years of the period was lost due to vacant courts bereft of judges or stalling of proceedings on various pretexts by lawyers from the opposing side.

I was lucky to have been supported by many in the profession, as also outside it. Professor Jashodhara Bagchi, the then Chairperson of the West Bengal Commission for Women, went through a harrowing time trying to settle the dispute with The Statesman. Her experience, though, exposed the flaws in the system and led us to realize that the Commission lacked “teeth.” We also realized that an employer could easily upstage a complainant by dragging a dispute to court, and with the judicial system we have, a matter would drag on for years. In the meanwhile, a complainant loses precious years of professional life, and is blacklisted by employers.

Even if you land up a full-time job with an employer who is extremely supportive of your plight, it is difficult to work when you have to keep shunting between courts for months (and years) together. In my case, I had a labour suit to attend in Kolkata, and two libel suits-one civil and the other criminal with the latter in Delhi, to attend to. I was left with no option but to freelance, notwithstanding the regular drain on my resources.

One of the worst problems when you have a complaint of sexual harassment at the workplace-is that no lawyer is willing to take up the case. They are apprehensive of losing the case, since they lack experience in such matters. (This again, is because of the deafening silence on such issues in a patriarchal society, which manifests itself in women keeping away from reporting on them). In my case, it was a media house, and hence even scarier! If not for Ms. Sutapa Chakrabarty of the Human Rights Law Network, (HRLN), an NGO providing legal aid to those who suffer a breach of their human rights, I might have had to plead my case myself.

There is another point I wish to make about those who swear by the names of celebrated legal luminaries. The lawyers at HRLN who fought my case were young and bright; and most of all, committed. Shamit Sanyal, Debashis Banerjee and his wife, Rajashri Banerjee, and Ambalika Roy brought a degree of commitment that is undeniable.

In fact, Debashis Banerjee worked hard to put forth the winning arguments that ultimately decided the case in my favour and got me an award from the Industrial tribunal granting my reinstatement and full back wages from the time of my termination by the management of The Statesman. And this was –to quote him- the “first case he had taken up as an advocate.”

The police, even if they be sympathetic and helpful, are utterly confused about how to deal with a white-collar offender. Eve-teasing or molestation by roadside miscreants is easy for them to deal with. But an educated man who is highly-placed in an organization can refuse to co-operate with the police investigation and easily get away with it due to loopholes in the legal system.

The Vishakha Guidelines were formulated with the best of intentions. But sexual harassment complaints committees in organizations are, more often than not, a total farce since the Guidelines presuppose organizations to be fair in bringing offenders to justice when a complaint is made to them. In my case, there was no such committee at The Statesman during my tenure. The pressure put in by Network of Women in Media in India ( NWMI), had my ex-employers hurriedly set up their committee.

My complaint, however, was never investigated into. Even as they refused to take cognizance of my complaint, The Statesman actually promoted the offender to a higher position.

One only hopes women will have a better deal once the Sexual Harassment at Workplace Bill becomes an Act in the near future.

The industrial tribunal has awarded me reinstatement and full back wages from the time I was terminated in October 2002 on the ground that it was illegal. However, the libel suits-filed against me by The Statesman and Ishan Joshi for having tarnished their reputation are yet to be decided. I still have a long way to go for a full victory.

Rina Mukherji is a senior journalist currently based in Kolkata. She has worked for over two decades in the print and online media specializing in issues related to sustainable development, the environment and human rights . She is the recipient of the 2011-2012 Laadli Media Award for Gender Sensitivity ( Eastern Region) and several international fellowships for reporting on science, the environment and public health