Lessons from ACJ: Why ICCs are inadequate to deal with cases of sexual harassment

In May this year, 35 individuals signed a public petition exhorting the Asian College of Journalism (ACJ) in Chennai to entertain a formal complaint of sexual harassment. The petitioners wrote that a former student had filed an official complaint with allegations of sexual harassment against Sadanand Menon, a culture critic and member of the university’s adjunct faculty. However, the college’s Internal Complaints Committee, which is empowered to inquire into complaints of sexual harassment, had refused to entertain the case on jurisdictional grounds. The ACJ administration dismissed the public petition as an attack on the university for its purportedly “liberal” leanings. In the ensuing days, social media erupted with claims and counter-claims made by studentsand public intellectuals, regarding the college’s approach to the complaint.

But this is not the beginning of the story—Menon was named in a crowd-sourced list of Indian academics who were accused of sexual harassment that was circulated widely in late 2017, in the wake of the allegations of rape and sexual harassment against the Hollywood producer Harvey Weinstein. The crowd-sourced list, curated by a law student, Raya Sarkar, almost immediately received backlash from the general public—one response in particular, a statement by several notable Indian feminists published on the blog Kafila, received particular attention. The statement decried the circulation of the list on social media and urged victims to take recourse through the “due process” of the law. But what happens when a complainant heeds this advice? A look at the former ACJ student’s case allows a glimpse of due process at work—in particular, its shortcomings.

In January this year, soon after the circulation of the list on social media, a former student of ACJ published an article describing how she felt to see the name of her former mentor, who sexually harassed her, on it. Though the article did not name Menon, it was subsequently revealed in the public petition that the author was in fact referring to him. In the article, the former student states that the public circulation of this list made it apparent to her that she was not alone in her experience because she was not the one who put her mentor’s name on the list. That month, the former student filed an official complaint with the college’s Internal Complaints Committee, or ICC, alleging that Menon had sexually harassed her at SPACES, a prominent cultural venue in Chennai, of which Menon is the managing trustee.

If the allegations against Menon were a part of a “smear campaign,” as he later claimed, the best resolution for everyone involved, including Menon, would have been for the ACJ to accept the complaint and initiate a confidential investigation. Instead, the college’s ICC rejected the complaint outright without considering its merits. According to the public petition, the ICC cited three grounds: that the incident did not take place on the university campus; that the complainant was not a student at the time of the incident; and that the limitation period for filing a complaint had lapsed. To understand the folly of dismissing a sexual-harassment complaint on these grounds, it is necessary to examine the ACJ’s reasoning, in specific, and the functioning of ICCs in general.

ACJrejected the complaint based on a decision by its ICC. But what, really, is the role of the body? The ICC is a quasi-judicial body that was envisioned by the Supreme Court of India in its landmark 1997 judgment in the case of Vishaka vs State of Rajasthan. The court laid down guidelines for the prevention of sexual harassment at the workplace, which later came to be known popularly as the “Vishaka Guidelines.” These guidelines acknowledged that civil and penal laws in India do not adequately address sexual harassment at the workplace.

Provisions against sexual harassment in the Indian Penal Code relied on arcane, sexist presumptions of outraging a woman’s modesty, and mainly targeted sexual harassment in public places or violent sexual assault. To address this, the Supreme Court directed employers to adopt preventive steps against sexual harassment, including setting up Complaints Committees. The Indian parliament adopted the Vishaka Guidelines in 2013, when it enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act—the law under which employers are mandated to constitute ICCs.

The scope of an ICC is therefore expansive in nature. The body is tasked with the broad mandate of ensuring a safe working environment, which includes fostering an understanding of sexual harassment that accounts for power dynamics in the workplace. But according to an article by another student of the college, published on the website NewsLaundry, the ICC of ACJ was inactive until the recent inquiries. “Prior to January 2018,” the student writes, “the ICC was in a ‘dormant’ state without even an active email address that students could reach out to.”

The ACJ has claimed that this case was beyond the jurisdiction of its ICC. All three grounds that were cited by the committee, as noted in the public petition, reflect various grey areas of the 2013 act on the prevention of sexual harassment of women at the workplace. This reveals an approach of narrow compliance with the minimum requirements of the law without fulfilling the broader mandate of the ICC. There is, in fact, a moral responsibility on an ICC to apply the law in an innovative manner that strives to achieve its objectives. Though such a responsibility may not be prescribed by the law, it is certainly not proscribed by it. This assumes importance while considering the stated grounds of the college’s ICC in dismissing the complaint.

The ICC’s first ground for dismissing the complaint was that the incident did not take place within the university. The definition of a workplace under the 2013 act includes “any place visited by the employee arising out of or during the course of employment.” While it is technically possible to argue that the complainant was not an employee, and that consequently the incident did not occur within the act’s definition of a workplace, such an interpretation would defeat the objectives of the legislation. In contrast, the ICC rules adopted by the Jawaharlal Nehru University expanded this definition to include any place visited by students during the course of their study. Considering that the ACJ complaint concerned a faculty member who was still teaching there at the time and a former student, the college’s ICC, too, had a responsibility to expand its jurisdiction to address the case.

The second ground for dismissal, that the complainant was not a student of the institute at the time, is subject to the same criticism—there is nothing preventing an ICC from admitting complaints from former students. For instance, the Committee for Prevention of Sexual Harassment set up in the Ambedkar University, Delhi is empowered to inquire into third-party complaints. In a recent case, the committee admitted a third-party complaint against its faculty member Lawrence Liang—, also named in the list prepared by Raya Sarkar—and found him guilty of sexual harassment.

The third ground, again, reflects an unnecessarily strict conformity to the time-limit for filing a complaint that is prescribed in the 2013 act. It specifies that a complaint must be filed within three months, which an ICC may extend by up to three more months. But the limitation raises important concerns about whether filing a complaint in such cases should be time barred. In fact, the 2013 act has received wide criticism for the inclusion of a time limitation for filing complaints. Moreover, Ambedkar University also admitted the complaint against Liang despite the fact that it was filed beyond the time-barred period. Evidently, it is legally tenable to overcome the limitations of the due process laid down in the law, and act in accordance with the larger spirit of the law.

Sexual harassment is precisely the kind of issue that survivors take time to come to terms with. It has now been well established that placing a time limit on complaints easily becomes a pretext to dismiss legitimate cases. In fact, the lawyers who first drafted this law had intentionally excluded any such limitation, and noted that it cannot be a ground for dismissing a complaint.

The Vishaka Guidelines, which served as the first legally-binding mandate on workplace sexual harassment, also placed no time limit on filing complaints. They noted that an employer must take appropriate steps to ensure that “there is no hostile environment towards women at work places.” Therefore, considering the fact that Menon was still teaching in the college and that the complaint was made in the interest of protecting current students, it would be reasonable to argue that the college’s ICC had an obligation to admit the complaint.

The analysis of these three grounds serves to underscore one important point—the ICC is only meant to serve as the bare minimum standard that is legally required. As illustrated by the committees set up in JNU and Ambedkar University, there is nothing preventing institutions from going beyond the basic requirements of the ICC as defined under the 2013 act. This was also recognised by the Justice Verma Committee, which reviewed the country’s laws on crimes against women in the aftermath of the December 2012 gang-rape in Delhi.

The Verma committee recommended that universities such as JNU, “whose anti-sexual harassment policies … meet the standards of Vishaka,” should be excluded from the purview of the then proposed law on sexual harassment because “these committees are more democratic and are better related to ensure prevention and prohibition of sexual harassment in educational institutions.”

Evidently, it is not so much that the ICC at ACJ could not entertain this complaint, but rather that it would not do so. By making this choice, the committee failed not only in its moral duty, but also arguably in its legal obligation to “provide a safe working environment at the workplace.”

Even while appreciating the framework of the ICCs set up in Ambedkar University and JNU, it is equally important to recognise their failings—the JNU’s ICC is yet to take any action in multiple complaints against the university’s professor Atul Johri, whereas the Ambedkar University’s ICC appears to have let Liang off with a rap on his knuckles.

A common detail across all three cases provides a possible explanation—Johri, Liang and Menon are all influential members of their respective university faculties. Time after time, the men exposed for their predatory behaviour are found to be some of the most highly accomplished and influential people in their fields. Creating committees with an institutional bias that favours these very individuals defeats the purpose of the exercise. Impartial and independent adjudication is a cornerstone of fair judicial processes. Yet, when it comes to workplace sexual harassment, the law accepts that those accused can be investigated by their own colleagues.

The committees were first proposed as internal bodies in the Supreme Court’s Vishaka guidelines to ensure that employers were responsible for the working environment in their organisations. While this decision may have been well-intentioned, it creates an inherent conflict of interest. Employers naturally have a vested interest in protecting their employees. This may result in the influential, senior members of an organisation becoming immune to complaints.

Although the ICC includes one external member, this is only a piecemeal solution to the problem of impartiality. The presiding officer of the ICC still has to be a “woman employed at a senior level at workplace” under the 2013 law. This leaves junior-level employees unrepresented and ensures that hierarchies of power are maintained. The 2013 law also doesn’t provide for a separate appellate authority even though the appeals process is essential to judicial accountability.

I experienced the absurdity of this first-hand when I worked at a small, non-governmental organisation. Although the organisation had a fully-functioning ICC, I personally did not have the confidence to approach the ICC when I wanted to make a complaint. My complaint concerned a senior member of the organisation, and I was aware that most of the senior members had been close friends and colleagues for many years. Given this context, I was unsure whether my complaint would be dealt with in an impartial and confidential manner.

I say this not to malign this particular organisation but to highlight it as a limiting case: even proactive organisations with the best of intentions may still not be able to offer their employees the confidence required to come forward with complaints. Clearly, there is an underlying structural issue.

These omissions become reason for further concern in the context of a university. A major oversight of the present law is its conflation of the workplace and university—since the law does not take the complexity of the power dynamics between a teacher and student into account, it is upon the universities themselves to address the shortcoming. The committee at Ambedkar University addresses this by electing student representatives onto its committee. However, despite these creative measures that institutions can adopt to address the shortcomings of the ICC, the very act of having a complaints process that is internal to them  constitutes a failure of the remedy for a complainant.

The only way to end the social-media trial that critics of the list decry is to create effective complaints mechanisms. Provisions to facilitate a transition of this kind already exist in the present law. For example, the 2013 law constitutes Local Complaints Committees, which are empowered to adjudicate on complaints in organisations where there are less than ten employees, or if the complaint is against the employer. The scope of these committees could be expanded to provide for an independent and impartial redressal mechanism for all complaints of sexual harassment.

Further, a structural solution to the problems inherent in an ICC could be found by creating an alternative judicial institution that exclusively hears cases concerning sexual harassment. In 2010, the National Green Tribunal was created specifically to deal with environmental cases. Both the National Green Tribunal Act and the 2013 law on the prevention of sexual harassment refer to Article 21 of the Constitution—which protects the right to life and liberty—in their statement of objectives. If the parliament could create a tribunal to deal with environmental cases, there is no reason that a similar tribunal cannot be created to deal with sexual harassment cases.

The debates that ensued after the list was published in late 2017 seem to have trailed off into an impasse of sorts: voices on both sides of the debate grew increasingly polarised with those in favour of the list being likened to vigilantes and khap panchayats, and those against it being  deemed Savarna apologists. But, if anything, the current moment should spur us beyond this impasse. Both sides of this debate acknowledge the limitations of the law. Perhaps we also need to see the possibilities that the law does offer and push our debates towards recognising its spirit.