Understanding The Sexual Harassment Case Against CJI - What If The Accused Was A CEO Instead?
Women who accuse men, particularly powerful men, of harassment are often confronted with the reality of the men’s sense that they are more important than women, as a group.”
– Anita Hill
The Supreme Court, in the year 1997, passed a historic and landmark judgement, otherwise known as Vishakha Guidelines, introducing proper legal guidelines on addressing sexual harassment in the workplace. Now, in the year 2019, the Supreme Court, in the case of sexual harassment allegations against the Chief Justice of India, is about to create another record. The fear is that it’s going to be a shameful milestone.
On 20th April 2019, a woman, who had until very recently been a Supreme Court staff member, sent copies of her affidavit to 22 judges, in which she detailed the allegations of sexual harassment she had experienced at the hands of Chief Justice of India Ranjan Gogoi. Much like the onslaught of #NotAllMen that every woman online has had to endure, Advocate Utsav Bains rushed in to declare ‘conspiracy’ faster than the bullet trains.
Yes, it is entirely possible that this case is fabricated. It is also equally likely that this case is genuine and our CJI is guilty. Sexual harassment cases are rarely black and white, often being opaque and hazy instead. One finds it very easy to see different narratives in the same story, partly due to our confirmation bias.
To better understand this case and its current and ongoing downfalls, let’s remove the legalese and the status from this case. Consider a situation where Rahul Gupta is just another man, working as a CEO in a corporate office. Over the years, he has promoted a junior female employee up the ranks and ultimately to his team. This female employee’s husband already works in their corporate’s sister organisation. Her disabled brother-in-law recently got placed in another department, thanks to Rahul Gupta’s recommendation.
Now, the case starts when this female employee took a casual leave and upon joining office again, she received a notice from the HR about a disciplinary inquiry due to her taking leave and other alleged violation of administrative rules. While this is happening, she has been transferred into three different departments, all within a single month! On the day of the disciplinary meeting, she faints and is rushed to the hospital. Nevertheless, the management has not been happy with her explanations, and she is fired.
In the meanwhile, her husband has been let go overnight, ending his career of more than a decade. Her brother-in-law, who was serving his probationary period, was asked to leave as well. Furthermore, she’s also detained by the police for alleged misappropriation of funds from the corporate office.
This may look like sheer misfortune on the female employee’s family, but she says it’s way deeper than that. She claims that Rahul Gupta, in the months before her employment termination, had sexually harassed her. When she rejected his sexual advances, she and her family had to face retaliation through institutional means.
Pushed into a corner, she sends in an email narrating her ordeal to the board of directors. In a typical scenario, the company would ideally investigate the claim and see if it has any merits. If yes, then disciplinary action would be taken against Rahul Gupta.
Now, all the directors and other company stakeholders were quite worried and some of them, including the accused CEO Rahul Gupta, came together for an urgent board meeting. Rahul, naturally, denied all allegations. The members spoke about the complainant letter and how it was an attack on their company and its integrity. Rahul also made unsavoury remarks about the complainant and said that she’s involved in criminal cases. As if people who have criminal cases against them cannot be sexually harassed! The board directors present in this meeting collectively state that this complaint is an attempt to break apart the board and therefore, an attack on the company.
Firstly, an allegation against Rahul Gupta, the CEO of one company is not an allegation against the company. Rahul Gupta is the highest officer responsible for his company, but he is not the company himself. Second, he called for a board meeting, chose its members and was leading it as an official meeting. If he is the accused, his presence in this meeting is unacceptable. To top it off, he mischievously left out on signing the minutes of the meeting! This means that apart from those who know what happened, there is no official record of his presence and participation in this meeting!
The employees union of the corporate office, instead of supporting the complainant, published a memo stating their full support towards Rahul Gupta. This is very suspicious since the only information openly available to them is the complaint letter and not the contents of the meeting in which the case was put down, and Rahul was given a clean chit. How can they decide without any report and just based on the complaint letter?
Rahul Gupta proceeded to form a panel to investigate the allegations of sexual harassment against him. He chose who all will be a part of the panel, which surprisingly did not initially include the Chairperson of their company’s Anti-Sexual Harassment Committee. Such committees are mandatory for every office, and even Rahul’s office has a fully functional committee, comprising of senior employees and an external member. Doesn’t matter how ethical and moral the committee members are, they will always be junior to Rahul Gupta, the CEO.
Now, it so happens that the anti-sexual harassment policies are effective in looking into complaints against employees, and not charges against the CEO themselves. For this purpose, the government has made other measures available, which are conducted by external members. That is members who are not at all related to the company, and not under the management, supervision and control of Rahul Gupta.
This meeting has two ironical sides. One being that Rahul Gupta routinely assigns tasks and work portfolios to those who are a part of this inquiry panel. There is a risk of this panel being unable to remain fair and impartial, not necessarily because of their possible weak morals, but because there is a clear power difference between them and CEO Rahul Gupta. What if they lose their jobs? Self-preservation and the necessity of maintaining a job to pay bills can be a strong influence on ethics and morals. Rahul’s act of hand-picking panel members who will investigate into the accusation that he has sexually harassed an ex-employee who happens to have criminal cases and has been denounced by the employees union is a little unsettling.
Second, right before Rahul took over as the CEO, he had earlier led a brave and passionate argument on how CEOs who abuse their power are a risking the faith of stakeholder in the company. Oh, the irony!
There is an additional law available to investigate claims against CEOs of corporate houses, known as the CEOs** Inquiry Act. The inquiry panel must be formed by the chair and speakers of the corporate regulatory body and not by the accused himself! Within this panel, one member is known to be good friends with Rahul.
Naturally, with so many concerns, the female employee/complainant rejects this panel and refuses to participate in such a pointless exercise, especially when she has not even been informed about the procedure this panel will follow to investigate into her complaint. No outcome reports would be made available to her, and she cannot even have anyone along with her in the hearings for support. It’s pretty much about ‘my way, or the highway’.
After the female employee refused to participate, this panel went ahead with the proceedings of the inquiry and took a statement from Rahul Gupta. Without obtaining any statements or appeal from her, the panel took an ‘ex-parte’ decision in her absence. Ideally, ex-parte decision, which means a decision made because the other party is a no-show and hence considered hostile, is done after giving sufficient notice and time to reply. However, since it was, as said by the board of directors themselves, a matter of ‘great importance that touches upon the independence of the board of directors’, the panel continued their ‘investigation’ without her and gave a clean chit to Rahul Gupta.
Conducting an inquiry with a panel that is inherently compromised, without any set procedure and done in the absence of the complainant is unacceptable.
For any investigator, it is crucial to understand the case from every possible angle to establish the truth. In almost all cases, the accused person always claims innocence initially, even if they are genuinely guilty. It is the job of the investigative body to bring in all the facts and statements of the case to see a clear picture.
Any sensible investigative committee would have looked into the firing of the complainant’s husband and her brother-in-law. Of course, it is highly possible that all three family members have been pathetic employees and they were asked to leave around the same time frame due to ‘poor performance’. If not, then it’s a win-win situation for investigators. If they establish that there was a connection, then it strengthens the case. If they establish that there was no connection, then it goes against the complainant.
One must also ask why the complainant was promoted to a higher ranking job in the first place? What was the justification? Is this favouritism done as an act of grooming?
Once we bring the status of the accused back into the current ongoing scenario, the risk of setting a wrong example can go a long way in establishing how women deal with sexual harassment. How various groups have officially rallied and voiced their support for the Chief Justice of India shows how the corridors of justice still function like a gent’s club. If the Chief Justice of India, the highest officer responsible for upholding the sanctity of the judiciary, behaves in such an unfitting manner, destroying basic tenants of law such as ‘principals of natural justice’ (no one can be a judge in their own cause, hear both sides), then we ladies have no choice but to form a whisper network to warn our sisters of sexual predators.
This unfortunate lack of a credible due process effectively puts the onus of preventing sexual harassment on the backs of women. Now, we wouldn’t want an online list of sexual harassers in the Indian Judiciary coming out soon, do we?
About the author: Sonam Mittal is an activist and an expert on the prevention of sexual harassment at the workplace act. She’s the co-founder of the Spoilt Modern Indian woman and MsChief at Azaadi