Opinion: Of mutually stressful media trials, swirling #InternJudge conspiracies and Arnab Goswamy: 09 December 2013

Nikhil Kanekal: How an intern packed a punch more powerful than anyone could have imagined
Nikhil Kanekal: How an intern packed a punch more powerful than anyone could have imaginedNikhil Kanekal explores the media furore and arguments surrounding the swirling #InternJudge sex harassment case that has thrown media, bench and bar into a tizzy.

As is the case with the most pressing issues facing India, Arnab Goswami, editor-in-chief of Times Now, in his characteristic rage-engulfed style, asked the nation to implore this Friday night why the Supreme Court had not done more than merely issue a report on an alleged sexual harassment case surrounding a former judge.

Asok Kumar Ganguly, who retired from the apex court on 3 February 2012 and is currently the chairperson of the West Bengal Human Rights Commission, was accused of sexually harassing a former research associate on 24 December last year. In its report, a three-judge panel said the statement given by SJ, the research associate (or ‘intern’ as some have chosen to refer to her), appears to contain prima facie evidence against Ganguly.

This is not a conviction or indictment as some have chosen to report to readers and viewers, although it would be proper for Ganguly to step down from public office while facing such an accusation.

The remainder of Goswami’s weeknight show, the Newshour, involved two Supreme Court lawyers – Aryama Sundaram and Sanjay Hegde – helping the host understand why the court could not, and perhaps should not, act further on its report.

Goswami wanted the court, having “taken cognisance” of the case, to direct the police to investigate the matter and follow it through to its logical conclusion. The original promotions for the show, which ran earlier on Friday, said the debate would centre on whether Ganguly should continue to remain in office as a human rights chairperson.

Supreme justice

Unfortunately, Goswami appeared to have gotten stuck on why the apex court itself was not bringing a former judge to justice. Goswami hinged this on the promise of P Sathasivam, the Chief Justice of India (CJI), who reportedly said, “justice will be done” on the allegation made by SJ, while it was still unclear who the “recently retired” judge was.

As CJI Sathasivam subsequently explained in his note on the panel report, Ganguly was not a judge at the time of the incident and therefore could not be held liable under an internal committee of the court. To use Goswami’s logic on himself, it would be akin to expect him to take action against a former Times Now employee who committed a transgression after having left the channel.

In Ganguly’s case, SJ can’t want the highest court to act as her court of first instance, nor was she expecting it to. She simply chose to depose before the SC committee because they asked her to.

It is not new for the inaptly-named Newshour to lack nuance (among other things), but Goswami’s confusion, which often manifests as national frustration, on why the Supreme Court had merely chosen to let the matter rest with the issuance of a report, appears to be shared by a few others I’ve spoken with recently.

More complex than ‘banter’?

Let’s just take a step back to understand that sexual harassment is not uniform or measurable, unlike rape and murder.

Not just legally, sexual harassment is complicated. It is different from rape because it stops short of what is potentially a full violation of a person’s body, but is violating nonetheless. When a person makes advances towards another and does not stop when disapproval is communicated, it is harassment. If it gets physical, it is harassment compounded with assault.

Inevitably, people always know when another is not interested in them. It is a biologically built-in mechanism, further refined by socio-cultural norms – decency and humaneness kick in to help us understand that our advances, words and actions are unwelcome and must cease.

This is when most stop. This ability to exercise restraint and empathy, and to be sensitive to another being’s feelings, is also what sets humans apart from most animals.

Sadly some of us don’t understand rejection, or chose not to. Even more sadly, the worst go through with their assertion, inflicting a scarring, sometimes violent mark on their target.

Unequal power equations

In Ganguly’s case, the allegation is not of rape, but of unwelcome sexual advances. To further complicate the matter, he is a person of authority with whom the victim shared a fiduciary relationship. According to SJ’s account, Ganguly was attempting to exploit the power equation between them.

The law recognises this phenomenon of powerful persons trying to sexually assert themselves over subordinates and has a higher penalty for those who are held guilty of this offence.

And as rightly pointed out by Sundaram and Hegde on national television, the law also recognises that the prerogative for kicking it into motion on sexual offences lies with the victim. If the victim of a sexual crime is not interested in pursuing charges against the perpetrator, then this choice needs to be respected.

I say this in full awareness of the fact that it is often tough for victims to come forward and confront culprits. But it is difficult to understand the psyche of those victims who make a conscious, empowered choice not to press charges and testify. It is not easy to understand a desire to disassociate oneself with an unsavoury incident of the past.

It is harder still to understand forgiveness. That’s perhaps why we forgive so rarely.

Unforeseen consequences

When she wrote her blog on 6 November, nearly 11 months after the incident which unquestionably left her shaken, SJ had no idea it would snowball into a campaign against her alleged tormentor.

If it seems hard to understand why she wrote what she wrote, while saying originally that she wasn’t interested in pressing charges, one answer is straightforward: she did it for closure.

She chose to publish it on a blog not because she wanted action against Ganguly, but to let it serve as a warning to others in similar positions – originally intended for potential victims, but working well to caution possible tormentors as well.

Sometimes victims could feel that frenzied media coverage and public outrage about their case is disproportional to the extent of harassment. They might also want to get on with life, which means not having to constantly engage with the criminal justice system and possibly face social stigma for speaking out about acts which have typically been borne silently till now.

SJ herself has described similar concerns in her original blog postsubsequent statements and in interviews with the WSJ and Legally India.

However, the ball has now rolled out of her court due to the position of her alleged harasser: a retired Supreme Court judge who was in the limelight for his judgments in closely-watched cases. And ironically, he still occupies a public office where victims of sexual offences might come to seek recourse, making him an easy target for campaigns and fury.

The inadvertent punch SJ landed on Ganguly was therefore much more powerful than she could have possibly imagined, and the public naming and shaming that he is being put through is itself significantly stressful – he told me so himself, twice.

The bitter end

The inability of persons to understand SJ’s apparent reluctance in pursuing the matter to its logical conclusion has led to speculation. In Delhi there are conspiracy theories swirling about Ganguly being a victim of disgruntled litigants who were hit by the rulings in the 2G spectrum case. In Kolkata there is reportedly talk in Left party circles that Ganguly was enticed by a political mole.

It is precisely for these reasons that victims of sexual offences prefer to distance themselves from the incidents they were involved in.

Members of the legal profession – mostly male – talk of a fear psychosis that would prevent them from hiring women subordinates in the future. Others have questioned SJ’s competence as a lawyer and worker, pursuing a line of argument that weak workers usually file frivolous complaints against their bosses.

Both these ideas are beyond bizarre.

Only those who have no control over themselves, or cannot resist keeping romantic/sexual feelings outside of the workspace would fear hiring employees of the opposite sex. And ‘weak’ employees usually aren’t the ones to file complaints against harassment. It is the more competent ones who do so because they’re good and they know it. Senior colleagues feel threatened by them and try to dent their ascent through harassment, which is sometimes sexual in nature.

As for Arnab Goswami, he probably knew all of this anyway, but having been endowed with the exclusive responsibility of producing the best television programming every weeknight, he did what he did had to.

As BV Rao explained to a friend in a letter recently, “It is tough to figure out why Arnab needs any experts at all because he knows the answers to all his questions.Times Now insiders say that more often than not he finds questions to the answers he already has. On his show, politicians can’t politicise, bureaucrats can’t beat around the bush, sportspersons can’t play games and lawyers can’t use legalese.”

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By Nikhil Kanekal Monday, 09 December 2013, 18:55 Legal opinions

http://www.legallyindia.com/201312094173/Legal-opinions/internjudge-nikhil-kanekal-opinion-conspiracies-arnab-goswami

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