How Far Can We Push “Due Process” for Sexual Harassment Survivors?

Social Commentary

How Far Can We Push “Due Process” for Sexual Harassment Survivors?

Illustration: Akshita Monga

Social media might have first exploded with hundreds of sexual harassment allegations last October, but the dust is still settling on the #MeToo movement. Even as women all over India outed predators they’d come across at workplaces, colleges, or at parties and comedy clubs, the wave of accounts came with an age-old understanding: There were hopes that the accused might see social or professional consequences, but they would never get their day in court.

India’s #MeToo is fundamentally an online movement, triggered by a bunch of events that included law student Raya Sarkar, who compiled a cautionary list of predators in academia to warn other young women away. Sarkar’s list, like so many of the #MeToo allegations that would follow, was not intended to call out the men named as much as it was to protect fellow women students. For those who shared decades-old stories of harassment, or who posted their accounts anonymously, the movement is about personal catharsis and the power of a collective voice. With a few exceptions, legal justice hasn’t been on the cards, and several of the incidents of harassment described do not qualify as crimes.

The revolutionary fact that the men accused are not, in fact, the focus of the #MeToo movement has been hard for old-school activists to appreciate. Kavita Krishnan, secretary of the All India Progressive Women’s Association, appealed to young feminists in an op-ed, saying she was uneasy with the mob mentality and name-and-shame culture of #MeToo. By talking cavalierly of blackening faces and vigilante justice, she said, “Are we not robbing ourselves of the argument of due process that we make in the other contexts of power?”

Krishnan invoked due process, however flawed it might be, as a form of legitimacy for a feminist movement that has long fought to be taken seriously. And yet, for the women who first shared their truths with the world, power came not from due process, but from the sense of community and safety that the #MeToo movement cultivated online. Still, that didn’t stop detractors – especially men – from seizing on Krishnan’s disagreement and writing #MeToo off as a witch hunt. Many thought women were doxxing their alleged harassers for revenge, and insisted that so-called real victims would certainly go to the police or other bodies, thus taking the first step down the long and broken road of due process.

It’s indicative of how we treat crimes against women and girls that the onus of due process seems to always fall on the victim. Few of the critics of #MeToo expressed outrage over a 2015 report that determined over one-third of Indian companies are not in compliance with the Supreme Court’s Prevention of Sexual Harassment against Women at the Workplace Act (POSH), or over the #MeToo horror stories of attempting to report harassment in offices, homes, or campuses.  

And now in the fray, we have the top court in the country; the judiciary is the sole resort and the only institution respected and beloved of Indians cynical about most other democratic institutions. However, on April 19, a former junior court assistant filed a detailed affidavit claiming that the Chief Justice of India, Ranjan Gogoi, had made sexual advances at the workplace, and had retaliated against her when she refused him. Following these explosive charges, the SC hurriedly convened a meeting, where Justice Gogoi emphatically declared his innocence, calling the allegations a threat to the independence of the judiciary.

From the very start, the case against Gogoi has been murky. An in-house three-judge committee was formed, picked by the CJI himself – justices SA Bobde, NV Ramana, and Indira Banerjee. The former SC staffer objected to the panel, as it did not abide by the  Vishakha guidelines or the POSH Act. After complaints by the woman, Justice NV Ramana recused himself from the panel and Justice Indu Malhotra replaced him as the third member. However, no external member was appointed, as per the guidelines.

On May 6, two weeks after the affidavit was filed, the committee gave a clean chit to Gogoi, ruling that there was “no substance” to the complaint against him. This absolution has led to protests by lawyers and rights activists, who have spoken out against the SC’s lack of transparency. In interviews with three publications, the ex-SC staffer made it clear that this is not the end of her fight. She claims that the three judges asked only a few questions about the alleged harassment. Calling the proceedings informal, she says the bench told her they were only looking into her complaint, and that they were not a sexual harassment committee.

It’s indicative of how we treat crimes against women and girls that the onus of due process seems to always fall on the victim.

Describing the proceedings in front of the three judges, the complainant said she was not allowed to have her lawyer present. Despite struggling with impaired hearing, her repeated requests for a support person were denied. Finally, the complainant walked out; she claims that she has not received the judges’ report.

That the panel itself could be faulty has been debated by many a lawyer. Dushyant Dave, senior advocate and the former president of the Supreme Court Bar Association, writes in The Hindu, “….with binding Vishaka Judgment, the court could not have appointed the committee as it did to examine the allegations of sexual harassment against one of their own, the Chief Justice. The constitution of the committee is contrary to the letter and spirit of the Act and the Guidelines.”  

The former staffer’s dawning realisation that her story would be dismissed is achingly familiar. When women attempt to name and shame their aggressors, they are asked to follow due process. When they do follow due process, as the former staffer did with a detailed affidavit sent to 22 judges, the process is long and tortuous. As most women know, due process is code for being on trial themselves.

As for those who have chased after due process? Writer-director Vinta Nanda, who accused actor Alok Nath of rape, made it to court — only to be accused in turn of falsely implicating him for “her own benefit” by the judge, who blamed her for being too intimidated by Nath’s power to immediately file a report. It’s the same remark that the SC ex-staffer claims she heard from the three-judge bench about her own delay in reporting the harassment. “They were very particular about one question: why had I filed the complaint at this particular time, after such a long gap? I replied. But they did not actually consider my reply,” she told publications.

Gogoi is innocent until proven guilty. There is no doubt about that. But on the other side are thousands of women who are waiting to see how far due process will take them. So far, the Gogoi case is a reminder for sexual assault survivors across the country that their complaints are likely to be delegitimised. Then again, what option do they have but to rely on broken systems that never seem to be in their favour?