By Deepika Sarma
Ever since Nobel Laureate and The Energy and Resources Institute (TERI) head RK Pachauri was accused of sexual harassment by a colleague, there have been several glaring holes in which the way the case was addressed by the police, the courts and most of all, TERI itself, leaving several lessons for institutions finding themselves in the same situation.
But first, are you a little fuzzy on the details of the TERI case? Here’s a brief recap of the story so far. (Or you could skip ahead to the part about what went wrong but shouldn’t have.)
On May 14th, 2016, Pachauri was summoned as the accused by a Delhi court, two-and-a-half months after the charge sheet was filed. The court took cognisance of the charge sheet filed against him, and is satisfied that there is sufficient material to proceed against him under sections 354-A, 354-B, 354-D, 509 and 341 of the Indian Penal Code. The complainant’s lawyer told Economic Times that she wants to move the Delhi High Court seeking a fast track trial, as she doesn’t want further delay.
In February 2015, police had booked Pachauri for molestation, stalking and sexual harassment under Sections 354, 354A and 354D of the IPC after a junior colleague’s complaint. The complainant alleged Pachauri had sexually harassed her and engaged in “sexually-laden conversations” with her over emails and text messages.
Previously, the complainant had approached to TERI’s Internal Complaints Committee, which in its report had found him guilty of the allegations and made recommendations to be followed in the case. TERI’s management failed to act on the recommendations. Hence she sought legal recourse.
On March 21, 2015, a Delhi court rejected a request by Delhi police to hold Pachauri in custody, and granted him anticipatory bail. On May 21, the court did not allow Pachauri to enter his office, and asked police to complete their probe into the allegations against him by July 17, 2015, failing which he would be allowed to return. (The Delhi police is yet to frame a chargesheet in the case, and has announced that it will do so in a fortnight.) That month, Pachauri returned to work at TERI with legal sanction – he had been on leave since the allegations were made – and according to a news report by the Indian Express, in the months that followed, he had been reluctant to hand over power at TERI, and had asked to be made chairman of the organisation with executive powers.
In November 2015, the woman resigned from TERI, and said in her resignation letter, “TERI failed to uphold my interests as an employee, let alone protecting them. The organisation has instead protected R K Pachauri and provided him full immunity, despite being held guilty of sexual harassment by your own inquiry committee […] I refuse to be associated with an organisation such as yours for the way you have mistreated me, for not standing by the law, for not having respect for my capabilities, for doing nothing to ensure that my career is not harmed and instead harmed me mentally, professionally and economically.”
In a subsequent public statement, the organisation responded that her allegations against the institute were “completely false and baseless”, but the statement also revealed information such as the woman’s hometown and her qualifications, which she pointed out could reveal her identity.
In January 2016, it emerged that a male researcher at TERI had given notice after being pressured by top officials at the institute to coax the woman into dropping the case against Pachauri.
On February 8, 2016, members of the TERI’s governing council (including bigwigs such as Naina Lal Kidwai, HSBC’s country head, Deepak Parekh, HDFC chairman, and Shailesh Nayak, former Secretary to the Government of India) appointed Pachauri Executive Vice Chairman after having sacked him as director-general in July 2015.
Two days later, on February 10, another former female TERI employee made public her allegations of sexual harassment by Pachauri. Represented by Supreme Court lawyer Vrinda Grover, she had attempted to file a complaint against Pachauri a year ago with the police in February 2015, but police still haven’t recorded it.
Following pressure from civil society as well as students and alumni at TERI University (of which Pachauri is Chancellor), the governing council met again on February 12. A new statement from TERI says, “Pachauri, who had been at the Head of the Institute since 1982 will be on leave from TERI, TERI Governing Council, and TERI University till this is reviewed by the Governing Council given the subjudice nature of the matter.”
On March 2, a year after the complaint was made police finally file a chargesheet at the Saket district court.
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If it already seems like there’s plenty that’s very, very wrong with how the case has played out, here it is again, spelled out:
TERI’s failed spectacularly as an institution to support people who complain of sexual harassment. Not just morally, but legally.
The woman who first publicly alleged sexual harassment by Pachauri sought redress through TERI’s Internal Complaints Committe – a body that every company or institution is required to have, under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Once the ICC made its recommendations, TERI’s management ought to have implemented it. It should have asked her if she wanted to file a police complaint, assisted her in terms of furnishing whatever documents, including emails, she would need, and encouraged witnesses to come forward. The woman should have had the option of pursuing the case both as a disciplinary proceeding or police action, if she choosed to.
Instead, after TERI’s dallying over the ICC’s report for a while, Pachauri got a court to put a stay on it in June 2015.
Mihira Sood, Advocate-on-Record at the Supreme Court, who has been following the case closely, points out that the role of the organisation under the Sexual Harassment Act is to facilitate the woman’s complaint. “Instead, they’re treating this as a case of the victim vs TERI. They’ve completely identified with the harasser.”
She adds, “There’s the constant argument that Pachauri’s not been pronounced guilty of anything. The first thing to remember is that ICC’s recommendations have been stayed, not set aside. Even if he is not yet convicted, TERI has two distinct obligations under the Act: to protect the victim and support her complaint in every way possible, and to ensure a safe environment that is not hostile, for everyone. Both haven’t been met, and this sends out a larger signal that sexual harassment complaints will not be taken seriously.”
TERI ought to have suspended Pachauri until the trial was over. It should not have allowed him to return in July, and its governing council should not have promoted him in February 2016 while a sexual harassment case was still pending against him – it’s in complete violation of the Sexual Harassment Act.
The two women complainants will be relying on documentary evidence, emails and testimony from colleagues from within the organisation, says Sood, all of which will be severely compromised if Pachauri continues in a position of power.
Delhi police should have prioritised conducting a fair investigation. And filed a chargesheet within the stipulated period.
The legally mandated timeframe for a chargesheet to be filed is 60 days for offences that carry imprisonment of seven years or more (for more serious offences, it is 90 days). If the chargesheet is not filed, the accused is automatically entitled to bail.
A year on, the Delhi police still haven’t framed their chargesheet against Pachauri. They missed the court deadline of finishing their investigation in July 2015. They still haven’t recorded the statement of the second complainant according to proper procedure. Whose side are they on?
The courts should never have granted Pachauri anticipatory bail, or let him go back to work at TERI.
“The court should have kept in mind the rather liberal way in which he’s been issuing threats,” says Sood. “All of which are grounds to refuse bail. He can silence witnesses or tamper with documentary evidence. I am not confident that TERI will preserve its internal documents [which may be used to incriminate Pachauri].” Legally, says Sood, it’s not okay that Pachauri was allowed to return to work at TERI, because there wasn’t just the one victim: another has come forward, and there may be others too. “It goes against the basic obligation to ensure a safe working environment,” she says.
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The Pachauri case isn’t the first case of sexual harassment to be handled so atrociously.
Remember Anjali Gupta? The 35-year-old flying officer in the Air Force who was court-martialed and dishonourably dismissed after she accused her seniors of sexual harassment, and who killed herself six years later? Or the Haryana policewoman who was troubled by seniors after complaining that they sexually harassed her? She consumed poison, but fortunately survived. Not all sexual harassment cases take such a tragic turn, but the question at the heart of workplace harassment is how victims can continue to earn a livelihood and stay on at their original workplace if they choose to, without having their professional growth harmed or their careers derailed for complaining about a crime. And how they can continue to work in a safe, supportive environment. Take the case of journalist Rina Mukherji, who complained about sexual harassment at the newspaper she worked at and was fired from her job later that year in 2002. The newspaper refused conciliation proceedings and in 2013 a court ruled in Mukherji’s favour, but not before she’d been considerably set back financially and professionally, having had to fight her case for years on end.
If we are to prevent the further torture of women who complain of sexual assault or harassment, it’s time we act on their complaints with seriousness, and followed the process set down by law.