- Quirk NLS
Don’t shoot the messenger
Speaking about sexual harassment is hard enough. Universities need to stop making it harder.
This piece has been written by Ayushi Agarwal (B.A. LL.B. Batch of 2018), Mukta Joshi (B.A. LL.B. Batch of 2019) and Spoorthi Kotha (B.A. LL.B. Batch of 2020). The illustration is by Mukta Joshi. Ayushi is a PhD scholar and lecturer at the University of Oxford, Mukta is a lawyer working with Land Conflict Watch, and Spoorthi is a Bangalore-based advocate.
In March 2022, two student facilitators appointed under the anti-sexual harassment code at NLSIU received a message from a student of another University. She claimed that an NLSIU student had sexually harassed her. She wanted to call the perpetrator out, and asked whether the two student facilitators could share details regarding the particular instance of sexual harassment with the NLSIU community, on her behalf. She said she was being threatened and needed the harassment to stop. It was important to her that the larger community at NLSIU knew about what had happened and who had done it.
NLSIU is unique in that it has had its own framework for sexual harassment redressal from long before the law required it. Its Code to Combat Sexual Harassment (SHARIC Code) was first enacted in 2002, over a decade before the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and its subsequent implementation in institutions across India. In fact, the centrality of this code to the aspirations of the student community at NLSIU is demonstrated by the efforts made over the years to amend it and bring it more in line with its goal: helping survivors of sexual violence find redressal. The most recent of these efforts was in 2019, when a group of students worked over months to draft amendments, which were passed and replaced the previous code of 2002.
NLSIU’s SHARIC Code can be considered more progressive than the POSH Act for many reasons, but one in particular stands out: it appoints eight student ‘facilitators’. These facilitators, as per Section 11 of the SHARIC Code serve as the receivers of the formal request for inquiry. Among other duties, they act as the first point of contact for accessing the institutional redressal mechanism, actively assist the survivor by exploring possible strategies and options available in resolving the situation, and support the survivor throughout the resolution process. In this sense, it is difficult to read the Code in a manner that would suggest that the facilitators are simply ‘neutral’ officers, akin to the adjudicating body itself.
Once formal proceedings are initiated under the code, they are also obligated, under Sections 11, 24 and 27, to maintain confidentiality regarding the proceedings. Section 27 contains a crucial clarification: it states that the duty to maintain confidentiality does not apply to “any information divulged prior to the commencement of the proceedings”.
At the stage at which the survivor approached the facilitators, it was unclear to them what the right course of action would be. As the proceedings had not begun, their obligation of confidentiality had not kicked in. More importantly, it was at survivor’s behest that the message was to be posted.
Consider this dilemma in the context of the #MeToo movement, which arrived on the NLSIU campus in 2018, close to a year after it made waves internationally.
Survivors within the NLSIU community used the same medium as in the present case (NLSIU’s internal Gmail and an internal Facebook group with students of the university) to narrate their experiences and name those who had wronged them. Scores of students – most of them women – shared their experiences of sexual harassment on campus at the hands of their peers – most of them men. At least one male faculty member was described as having behaved inappropriately with a female student, which hardly came as a shock (this particular professor had been notorious amongst the students for being “creepy”). It came to light that the wrongs on campus ranged from verbal harassment to rape. It would not be an exaggeration to say that the campus was rocked by these revelations; it was a time of great personal and collective turmoil at NLSIU. While there were many disagreements amongst the student body on the issue, it was clear to all that it was a pervasive problem of monstrous proportions.
The aftermath of the movement posed many questions: How had more than 70 incidents of sexual harassment occurring on a campus with a strength of approximately 500 students gone unnoticed? How should the student body deal with those named as perpetrators? How was this to be prevented from happening again? Why had this happened, to begin with?
The most striking thing about the NLSIU administration’s response to the #MeToo movement on its campus was the complete and total lack of it.
The students grappled with these questions in open house discussions (such as the “Not a Safe Space” discussions organised by the university’s feminist alliance), on batch WhatsApp groups, on email threads, and over mess tables. While there was no consensus or single answer with respect to many of these questions, it was quite clear that most survivors did not place any faith in the University’s sexual harassment redressal mechanisms. Institutional support was lacking in other ways. The administration did not attempt to alleviate any concerns about the fairness of the Sexual Harassment Inquiry Committee (SHIC), nor did it attempt to reach out to the student body in any way whatsoever after the #MeToo movement.
The SHARIC Code appoints a Sexual Harassment Policy Advisor (SHPA) whose objective as per Section 7, is to ensure the implementation of the code. Amongst other duties, they must monitor the support structures provided by the University. The facilitators approached the then SHPA and consulted her as to whether posting a message naming the alleged perpetrator on behalf of the survivor, was in line with the code. The SHPA did not raise an objection – on the contrary, she told the facilitators that the decision was left to them.
In the context of the decision the student SHARIC facilitators had to make at this stage, especially in light of their duty under the SHARIC Code to actively assist the survivor by exploring possible strategies and options available in resolving the situation, it may be helpful to unpack why calling the perpetrator out has been and continues to be so important to the survivors of sexual assault all over the world.
Survivors’ choices are often informed by the very real societal bias against survivors and women. Formal procedures are often daunting and intimidating to survivors regardless of how equitable they may seem on paper. Research shows that the members of Internal Complaint Committees can display the same biases as the alleged perpetrator. In addition to this, survivors’ own families are often unsupportive of their decision to initiate formal proceedings. Further, the survivor may not want to come face to face with her perpetrator again. In this context, telling the community what the perpetrator did could seem like a more liberating option than repeating it to a committee of strangers, or professors, who may or may not believe it and question every aspect of the experience.
In fact, Section 8 of the SHARIC Code prescribes a duty of the University to “provide a safe working environment… which shall include safety from the persons coming into contact at the University”. This should, arguably, be read as including within its fold, survivors’ ability to pass on their experiences and alert others. In any case, the SHARIC, while a laudable attempt at providing the minimum safeguards required for a survivor to access some semblance of justice, by no means has exclusive jurisdiction over matters of sexual harassment redressal in the university. Survivors have and will continue to seek both justice and closure, and very often the first step towards that includes being able to speak openly about the full extent of their experience and reclaim their narrative about the incident - something that is now punishable under NLSIU’s disciplinary code.
Caste, gender identity, sexuality all inform these decisions too. There is no provision for caste-based or trans representation, or sensitisation, within the Internal Complaints Committee despite university spaces historically being exclusionary of Dalit and indigenous women, and trans individuals. Homophobic bias is no secret either. But at the end of the day, it is the survivor’s own choice whether or not to proceed with a formal complaint, and that choice cannot be held against her.
The survivor in this case, needed the harassment to stop and wanted to alert the NLSIU community about his actions. In the age of electronic and social media, this is simply a manifestation of a whisper network – which women have used, across societies, for centuries – informing others to beware of “creepy” men, or men who had harmed them.
Exercising their discretion, the facilitators then sent the message on the survivor’s behalf to NLSIU’s student body, on both Gmail and Facebook. Soon after, the alleged perpetrator filed a complaint against them under NLSIU’s disciplinary code. The disciplinary committee found the student SHARIC facilitators guilty of ‘major misconduct’, stripped them of all positions of responsibility, and instructed them to either apologise to the alleged perpetrator or each pay a five thousand rupee fine.
Following a letter sent by nearly 200 alumni condemning the university’s action, NLSIU issued a statement to the media, revealing that the disciplinary committee had reached its finding in accordance with the university’s Principles of Conduct. It stated that the students had caused ‘serious physical or emotional harm’ to the alleged perpetrator (seemingly, for publicly naming him on behalf of the survivor) and the university’s Information Technology Policy for violating the right to privacy of the alleged perpetrator, disclosing sensitive personal information, causing harassment, and sending an “unauthorised” email.
To compare, the illustrative examples listed in NLSIU’s Principles of Conduct under causing ‘serious physical or emotional harm’ are ‘ragging, violent behaviour of any kind such as assault…manhandling and other such debasing forms of behaviour, possession of weapons or explosives, threatening the lives of other’. It is incredulous that the disciplinary committee felt that this was the appropriate provision to hold the student facilitators guilty, and effectively equated aiding a survivor of sexual assault call out the perpetrator with conduct like ragging and possession of weapons. It is also interesting to note that ‘major misconduct’ for causing ‘serious physical or emotional harm’ encompasses outraging the modesty of any person, whether or not they are members of the University community; something that would be applicable to the alleged perpetrator’s actions but instead, was successfully used against those who named him.
Further, the right to privacy of every citizen, is a fundamental but limited right. Every adjudicatory action requires the application of mind to balance conflicting values – here, the disciplinary committee of NLSIU had to balance the alleged perpetrator’s right to privacy and right against reputational harm, with the survivor’s right to live as a dignified and equal individual, free from sexual assault, and her freedom of speech with regard to her own experiences. Since an individual’s zone of privacy is limited only to reasonable expectations of privacy, one cannot claim that their act of harassing another individual ought to remain private. The committee also failed to consider the nature of the student facilitators’ actions: that the messages were posted in good faith, after having consulted the responsible faculty member, and were even taken down as soon as the disciplinary committee alerted them that it was not in line with their duties as SHARIC facilitators.
NLSIU’s statement in response to the alumni letter also mentioned that publicly naming a perpetrator of sexual harassment is “not conducive to the kind of community living that [they] would like to nurture at NLSIU”. This suggests that the NLSIU administration would rather that there was no #MeToo movement at all. We ask – why does the administration not want to nurture the kind of community living that upholds the right of students to beware of their peer’s actions and be safe from them? Why does this conception of community living not extend to accountability (in whatever meagre form) for one’s actions of sexually assaulting or harassing another?
Not only did the disciplinary committee fail completely in carrying out this balancing exercise, but it also imposed an excessive and disproportionate punishment. And in the process, it sent a strong message to any survivors: that their story and trauma were theirs alone, that their stories were unwelcome at NLSIU, and that unless they file a formal complaint with the SHIC, they should forever remain silent about what they had been made to endure.
Sexual assault and sexual harassment should be understood as a symptom of sex-based discrimination rather than as an isolated issue leading to the occurrence of individual offences. Complying with both the principles and the spirit of the SHARIC Code and the POSH Act, and adjudicating complaints in accordance with these, is the bare minimum. It is also essential for the University to understand its duty as extending to creating an atmosphere and a community where each and every person feels safe and is safe.
Universities everywhere must recognise why survivors of sexual harassment choose to name the perpetrators in question, and allow this understanding to guide their response towards incidents such as these. Not talking about sexual harassment is not the same thing as the absence of sexual harassment. Misogynistic attitudes have not gone anywhere and neither has the stigma experienced by survivors of sexual violence, often scaring them away from speaking up. At the very least, universities should stop silencing those who do.