A #MeToo case highlights how 'due process' may shortchange and re-traumatise survivors who speak out

In cases of sexual harassment, ‘due process’ is held up as a kind of golden ideal. But how does it translate into practice? If an organisation is committed to social justice and human rights, does this automatically make its own workplaces egalitarian or safe? And what does a complainant do when due process has failed her? These are among the questions development sector professional Shivani Lal confronted after filing a complaint of sexual harassment against a former colleague, Mathew Jacob, in October 2018.

Rohini Nair March 13, 2020 09:08:57 IST
A #MeToo case highlights how 'due process' may shortchange and re-traumatise survivors who speak out
  • A development sector professional was urged to file a formal complaint against her alleged harasser by the NGO she had worked at.

  • She says the due process she was promised, however, turned out to be a sham.

In cases of sexual harassment, ‘due process’ is held up as a kind of golden ideal. But how does it translate into practice? If an organisation is committed to social justice and human rights, does this automatically make its own workplaces egalitarian or safe? And what does a complainant do when due process has failed her?

These are among the questions development sector professional Shivani Lal confronted after filing a complaint of sexual harassment against a former colleague, Mathew Jacob, in October 2018. In a Medium post she shared (along with the added testimonies of two other women) on 24 January 2020, Lal has spoken of experiencing sexual harassment at the workplace, and also how she felt further silenced when she attempted to seek redressal for it.

Firstpost has received permission from Lal and her peers — Bondita Acharya, who worked at the same organisation as Lal; and an unnamed third woman, an ex-employee of Amnesty International India — to quote from their statements (which can be read in their entirety here).

Lal, Jacob and Acharya were all associated in some capacity with the Madurai-headquartered human rights NGO People’s Watch. As employees or volunteers, they were variously involved in the work of People’s Watch and its allied networks such as Human Rights Defenders Alert — India (HRDA) or Working Group on Human Rights in India and the UN (WGHR; of which People’s Watch was a founding member). The work of these groups overlapped; an individual could be formally part of one network, and have a role in the functioning of another.

The harassment Lal details dates to May of 2015, when she and Jacob were out of the office on a work trip. Lal was with WGHR at the time, and Jacob with HRDA, but their work brought them together on numerous occasions. After the day’s schedule had wrapped, and they conversed over drinks in Jacob’s room, Lal says he began pressurising her to have sex with him. Since her repeated refusals seemed to have no effect, Lal told Jacob she was queer, hoping this would make him stop. However, he persisted, until Lal managed to get away from the room.

The next few months, as Lal writes in her statement, were filled with anxiety. She had moved to HRDA as well, and as the only female member of a then four-member team (apart from Lal herself, there was Jacob and another male colleague, and a male intern from People’s Watch), she feared being alone with Jacob. She also worried that he would ‘out’ her to their peers. In January 2016, unable to cope with the strain and Jacob’s presence, Lal quit. “I felt suffocated, unsafe and anxious all the time. The organisation had not put any effort into making it a safe working space,” she says.

In October of 2018, as the second wave of the #MeToo movement took over social media timelines in India, Lal shared her account anonymously, through a friend’s Twitter handle.

To Lal, the initial response must have seemed hopeful: Within days, People’s Watch issued a statement. Lal’s allegation would be looked into, the statement noted, urging her to participate in the process; Jacob had stepped down from his position as programme director with People’s Watch.

But Lal says the ‘complete and transparent support’ she was promised never materialised. Instead, ‘due process’, as carried out by People’s Watch, “turned out to be a sham, upholding entrenched power structures rather than leading to any real redressal”.

***

A MeToo case highlights how due process may shortchange and retraumatise survivors who speak out

When Bondita Acharya, then HRDA’s Northeast coordinator, heard about Lal’s complaint in October 2018, it struck a chord with an incident she had witnessed two years ago.

In October 2016, Acharya says she was in Manipur for a training programme and was in the same car as Jacob and a young woman. According to Acharya’s statement as published on Medium, even as the woman protested, an inebriated Jacob insisted she accompany him to his guesthouse room. Acharya was hesitant to intervene at the time — she didn’t know the other woman well. She says she did, however, confront Jacob about his behaviour, which he seemingly passed off as “having [human] needs…and being unable to devote time for his personal life due to his workload”. “All of this was to justify his behaviour,” Acharya says.

As Lal’s allegation against Jacob emerged during the #MeToo movement, Acharya aired her concerns to fellow human rights activists and peers in the development sector. She was advised that since the woman herself had not complained about the 2016 incident, it was best that Acharya refrained from bringing it up in the absence of proof. (Acharya says she has since sought permission from the woman to speak about the episode with Jacob.)

Since Acharya felt unease at remaining quiet about what she perceived as her knowledge about a troubling pattern of behaviour on Jacob’s part, she decided to reach out to People’s Watch founder Henri Tiphagne in November 2018.

In a WhatsApp message, a screenshot of which has been shared with Firstpost, Acharya detailed the October 2016 incident.

She also brought up another issue: Acharya told Tiphagne she was harassed by a colleague named Narottam Joshi in January 2018 at the HRDA Delhi office. In her Medium post, Acharya has accused Joshi of following her into the small kitchen on the premises, holding her tightly from behind, and tickling her — an action that made her “extremely uncomfortable… as it was not a casual or friendly touch, and anyway [they] did not share such a close relationship” that Joshi could hug her in this manner. She says she immediately tensed up and slipped out of Joshi’s grip.

Tiphagne’s response (or lack thereof) to her message astounded Acharya. She says the People’s Watch founder neither asked her for more details of the incidents involving Jacob or Joshi, nor did he provide a time when he might be free to discuss the matter further. In a later meeting, Tiphagne asked Acharya to submit her complaint against Joshi in writing, which she says “was surprising, considering that when an FIR can be registered over the phone, here was the head of a human rights organisation, who didn’t want to talk to a female colleague about her facing sexual harassment at the workplace”.

That November Acharya and Tiphagne attended the Human Rights Defenders World Summit in Paris. She says Tiphagne didn’t carry the discussion forward at this juncture either.

By March 2019, Acharya too had left HRDA.

***

Meanwhile, Lal was struggling with the process of seeing through her formal complaint against Jacob. Between October 2018 (when the allegation was first tweeted) and February 2019, she was engaged in an increasingly “sporadic and inconsiderate” email exchange with the ad hoc committee that had been set up to look into her complaint and report back to the People’s Watch Internal Committee (IC).

Since her hearing was to be held in Delhi (Lal is based in Mumbai, Jacob was in Delhi, and People’s Watch is headquartered at Madurai), Lal requested that the committee let her know the date sufficiently ahead of time so she could make economical travel arrangements. Despite repeated emails to the committee, Lal says she was finally informed of the hearing date only five days in advance.

“With the response time between mails — our only means of communication — so stretched, I waited anxiously over these four months, not knowing what to expect,” says Lal. “There was no roadmap to rely on, no timeline stipulated on how this ad hoc committee would operate. It seemed as though they were determined to make the process as punishing as possible for me. A process which is supposed to be survivor-friendly should not be this taxing to a person’s mental health.”

For Lal, the hearing itself was an ordeal. “The committee dealt with the evidence and testimonies presented before and during the hearing as a matter of public trial, needing proof beyond reasonable doubt,” she says. She still fumes over a question the convener of the committee, a leading lawyer, asked her: “Do you remember how many drinks you’d had by the end of the night? Do you remember how empty the bottle was?”

Lal says the committee relied on the testimony of one individual in reaching its conclusion — a colleague who said he had been sharing a room with Jacob on the evening Lal says she was harassed. The man was deemed an “independent witness” — i.e. a third party who can present an unbiased opinion as he/she is not connected to the complainant or the respondent — by the committee, even though Lal says this man and Jacob had a continued association since 2015. On the other hand, four women whose testimonies were presented by Lal (after they reached out to her on Twitter, saying they too had been harassed by Jacob) weren’t deemed independent witnesses.

The committee concluded that “upon consideration of the material brought before us, we are unable to find the allegation in the complaint proved”.

In spite of having shared her concerns about Jacob, Bondita Acharya was not asked to participate in the inquiry process. And Acharya says that during this time, Jacob continued to be part of the organisation’s messaging and social media groups, even though he had seemingly stepped down from his position. She also states that Jacob seemed to enjoy the support of most peers and colleagues within People’s Watch and its allied networks, whereas she [Acharya] was made to feel guilty for cutting off contact with him.

***

Lal had little recourse left at the end of the hearing.

“Mentally exhausted and supremely disappointed” not just with the committee’s findings but also the entire process, Lal wrote to the committee, rejecting its report in its entirety. To her surprise, the convener wrote back to her saying the committee had been dissolved and any further grievances would need to be addressed to People’s Watch.

Lal sent an email to People’s Watch, and also wrote to the larger network, WGHR, of which People’s Watch is a member. WGHR told Lal that it was not in their power to address her concerns regarding the findings of the external committee, and that they regretted “not having a sexual harassment policy in place during [Lal’s] tenure with WGHR, and unwittingly creating a work environment [she] did not experience to be safe”. “While we recognise that you felt unable to submit a complaint while you were working with us, we nonetheless clarify that had you done so, we would have responded immediately,” WGHR’s email read.

In effect, Lal says this essentially meant she was being blamed for not reporting her harassment to WGHR in 2015, while the group itself admitted they had neither the mechanisms nor the capacity to deal with a complaint like hers at the time.

***

Away from People’s Watch, a third allegation had been made against Jacob in May 2018, by a woman who was then employed with Amnesty International India. [She no longer works there.] The woman, who is being identified as ‘N’ in this report, said she had been sexually harassed by Jacob during a conference, and Amnesty’s IC began an inquiry into her complaint.

According to N, despite repeated summons and assurances of impartiality, Jacob chose not to engage with Amnesty’s IC. He maintained that the IC at Amnesty did not have jurisdiction to investigate complaints against an employee of another organisation, and dismissed N’s allegation as “false and baseless”.

The inquiry by Amnesty’s IC found that Jacob’s actions did constitute sexual harassment. N says that the management at Amnesty International India contacted People’s Watch to implement the recommendations of the IC, but were told once again that they [Amnesty] did not have the jurisdiction to investigate Jacob.

***

Firstpost reached out to a member of Amnesty International India’s IC, who said details of N’s case could not be divulged in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

In requests for comment shared with Henri Tiphagne, Mathew Jacob and Narottam Joshi, all three refuted Acharya, Lal and N’s statements.

Joshi denied any knowledge of the incident Acharya outlined, saying, “I am not aware of any allegation against me till now... I was only helping out as and when it was required by People’s Watch, completely on a volunteer basis and extended my services pro-bono, which on an average, never exceeded two days in a month. I have always been employed elsewhere full time.”

Mathew Jacob said he and Lal had formally consented to the composition of the external committee, its mandate and process and that they had been provided opportunities to submit both allegation and response, and further responses, before the hearing. Additional submissions were allowed following the hearing, after which, “the committee, in its report, concluded that the allegations weren’t proved,” Jacob says.

He says that he voluntarily stepped aside from the time of Lal’s allegation, until the board of People’s Watch accepted the external committee’s report, and his official email account was suspended.

Jacob also told Firstpost that he and Lal weren’t colleagues in 2015, at the time that Lal says the harassment occurred: “We worked together on certain instances because of the associated networks. She joined People’s Watch only four months after the said allegation. At that time in PW Delhi, the team composed of only three people including the complainant, myself and one other male colleague.” However, to Lal, Jacob’s statement that she wasn’t directly working under him seems like misdirection: while she was with WGHR when the incident occurred, she closely worked with Jacob as he “was virtually steering the WGHR secretariat”, she notes.

Regarding N’s statement that he had not compiled with the Amnesty IC’s inquiry, Jacob says he wrote to them “on seven occasions between November 2018 and February 2019, requesting an independent committee be set up by the organisation”. Jacob felt he was at a disadvantage given “the complainant is an immediate colleague of the committee members” and his “public criticism” of Amnesty International India and participation in a “collective intervention with its international counterpart [into] certain allegations of discrimination within this organisation”. Jacob says Amnesty failed to act on his requests for an external committee to inquire into N’s complaint.

***

A MeToo case highlights how due process may shortchange and retraumatise survivors who speak out

While the law against workplace sexual harassment is quite clear in defining the ‘workplace’ as any place you need to be on account of your work, people tend not to be aware, or don’t appreciate this aspect. Illustration by Satwik Gade

Sumitha, a member of the People’s Watch IC, told Firstpost that the allegations against Jacob were brought to the committee’s attention a day after being shared on Twitter in October 2018.

The committee then forwarded it to the board of trustees of People’s Watch and “it was decided to form an external committee based in Delhi, in consultation with the complainant”. While stating that the details of the inquiry could not be shared as they are confidential, Sumita confirmed that the external committee’s findings were placed before the board of trustees on 12 April 2019, following which, Shivani Lal appealed to the executive trustee against the findings of the committee. “The board of trustees, after due consideration of the appeal made by the complainant, decided to accept the findings of the external committee,” Sumitha said.

People’s Watch founder Henri Tiphagne says the organisation “has a strong policy against sexual harassment at the workplace” and that “due process had been followed and proactive measures taken, in the case of Mathew Jacob”. Jacob was reinstated only after the board of trustees accepted the findings of the external inquiry committee.

Tiphagne told Firstpost he “vaguely recollects” the WhatsApp message from Bondita Acharya, but that the allegation against Joshi was “not made known to [him] as a complaint” by her. “When I next met [Acharya] in Delhi, I asked why she had remained silent on these concerns for so long…without lodging a complaint. I remember asking her to formally communicate the complaint to me if she wanted me to take action. She did not.” He says Acharya did not raise the issue when they met at the Paris summit.

[Firstpost asked lawyer Amba Salelkar in an interview — a summary of which is included later in this report — if the head of an organisation is bound to act on a female employee’s disclosure of having experienced workplace harassment if the information was shared via an informal channel such as a WhatsApp message rather than a formal letter. Salelkar would not comment specifically on this case, but said of such a scenario: “I would think the head of the organisation must forward this to the IC for action.”]

Tiphagne also said that Amnesty International India did not refer to People’s Watch at the time they initiated action on their employee’s complaint against Mathew Jacob. “We were not made party to the inquiry or invited to jointly constitute an independent external committee in the matter,” he says.

On 9 May 2019, when Amnesty International India emailed People’s Watch, sharing their findings from their inquiry into N’s complaint, Tiphagne says he learnt from Jacob that he had not “submitted to the jurisdiction of the [Amnesty] IC since he was not an employee and requested an independent external inquiry committee be constituted in the matter in line with the POSH Act”. Tiphagne wrote back to Amnesty in a few days, requesting a response on “the jurisdictional, legal and procedural objections raised to the IC before taking any final decisions at our end”, but didn’t hear further from Amnesty.

“This is where the matter stands, with us being unable to proceed in the absence of a response. There is no question of us not having followed due process when we were not involved in the process initiated by Amnesty International India,” Tiphagne says.

***

In an interview with Firstpost, lawyer Amba Salelkar noted that in many organisations, there is little clarity on where the workday begins and ends. And while the law is quite clear in defining the ‘workplace’ as any place you need to be on account of your work, people tend not to be aware, or don’t appreciate this aspect. Volunteers and interns are also included under the scope of the law.

“Even if two people who work together go out in a completely non-work context, and one of them is made to feel unsafe, it’s not like when they come to work the next day, everything is forgotten. The objective of workplace sexual harassment law and policy is to ensure that the workplace is safe,” says Salelkar.

Salelkar says that organisations [in the development/NGO sector] are small, and “with the closing spaces for civil society in general, there is a wariness of anything which involves press/government scrutiny — and unfortunately, this includes cases of sexual harassment at the workplace. So the instinct of management often is to dissuade these complaints rather than address them head on.”

Another issue is the perception that the sector is “woke” and thus immune to perpetuating harassment. Salelkar observes that “many NGOs have actually expressed that while they feel that their staff is at risk of sexual harassment from outsiders, they don’t perceive risks from their own staff. So they don’t actively encourage training among staff and management that addresses issues such training should actually be talking about”.

Salelkar clarified a few aspects of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:

ICs needed training to facilitate survivors’ participation in the inquiry process. The mandate of the IC is to ensure a safe working environment. Inquiry committees are not courts, nor are they police. Their conclusions may be guided by whether or not the narrative put forth by the complainant is a plausible one. If a complainant is not satisfied with the report of the IC, she may file an appeal with the authority specified for this purpose. If a woman is harassed by an employee of another organisation in a professional situation (such as an industry-wide event or conference), the IC of her company must support her in raising a complaint with the IC of the company that employs her harasser.

Salelkar says there is lack of clarity about how ICs must operate. “Government ICs and PSUs are quite stuck in the ‘departmental inquiry’ mode of operation and so they follow that, which isn’t always survivor friendly. There is also a lack of appreciation of this idea of what the burden of proof is and how it operates. Organisations aren’t investing in good external persons or training IC members as they often don’t see sexual harassment at the workplace as a problem, or they would rather not be seen to be acknowledging it by really investing in mechanisms,” she says.

People who are looking for help when they have been sexually harassed often come up against a lot of bad advice. Salelkar points to reliable online resources like the FAQ section of shebox.nic.in but notes that we’d be better off ensuring a human interface for those seeking to file complaints.

For Shivani Lal, the way her complaint was handled has made her feel as though she was silenced twice. In coming forward with her account, she hopes to make people aware of the “misogyny and gaslighting at play in the development and NGO sectors and hold them accountable to some inalienable truths”.

“With no clarity on how ICs are supposed to function, and no guidelines to follow to ensure an already vulnerable survivor is not made to feel shame, guilt and pressure in the face of a tough task — confronting their aggressor — I believe some ‘capacity building’ is required,” Lal says, of what the sector needs to address. “And the first step towards that is to acknowledge our inherent biases when it comes to dealing with issues of exploitation at the workplace.”

Updated Date:

also read

Shilpa Shetty denies being aware of Hotshots app in chargesheet filed against Raj Kundra
Entertainment

Shilpa Shetty denies being aware of Hotshots app in chargesheet filed against Raj Kundra

"I was too busy with work, did not know what Raj Kundra was up to," said the #ShilpaShetty's statement, which is a part of the 1,400-page charge sheet filed by the Mumbai Police

India recorded 77 rape cases, 80 murders daily in 2020, says NCRB report; crimes against women highest in Rajasthan
India

India recorded 77 rape cases, 80 murders daily in 2020, says NCRB report; crimes against women highest in Rajasthan

Among states, UP reported the maximum of 3,779 murder cases, followed by Bihar with 3,150 cases, in Maharashtra 2,163 cases were registered, the data showed

Crimes against women, children drop in 2020 but disobedience cases up, says NCRB
India

Crimes against women, children drop in 2020 but disobedience cases up, says NCRB

A total of 3,71,503 cases of crime against women were registered during 2020, showing a decline of 8.3 percent over 2019