Judiciary should use RK Pachauri case to set precedent over law on sexual harassment at workplace

The Delhi High Court, on 13 February, refused to put a gag order on the media from reporting on the issue of the allegation of sexual harassment against RK Pachauri, the former The Energy and Resources Institute (TERI) chief, observing that “the media, by its reporting, should throw more light rather than generate heat”. The court also stated that all reportage on the matter should consider his or his representative’s views and denote that the matter is still subjudice. While doing so, the court recognised the right of the public to know and understand the developments in the case, and that any gag order on the media would be a “trampling” of such a public right – “Now that being the position of law, the injunction as sought for falls foul to the said explicit proposition of law. Such restraints as sought for not only amount to enforcing a gag order upon the media but at the same time prevents a right of the public to be kept updated about the developments – their right to know is infracted or trampled upon.” In February 2015 , a female employee of TERI had registered an FIR against him accusing him of sexual harassment at the workplace. Following this, more women came forward with allegations against him. After the investigation in March 2016, the Delhi police filed a 1400-page chargesheet against Pachauri, accusing him of stalking and criminally intimidating the complainant. Soon after, Pachauri filed a civil suit against a few media houses in 2016. He filed a plea for injunction and defamation seeking damages amounting to Rs. 1 crore against the media houses, stating that he was a public persona and a recipient of various awards, and his reputation was being damaged. The Delhi High Court’s rejection and dismissal of Pachuari’s plea for a gag order was celebrated as a win for the survivor who stood up against Pachauri’s sexual advances at the workplace, especially because it indicates that the judiciary is finally ready to identify the egregious sexual violations against women at the workplace. However, let us not forget that the Delhi High Court’s decision is a victory for the freedom of expression for the media houses to report, and not a triumph for women to be free from violence at their workplaces. In the FIR that was filed almost exactly three years ago, the survivor wrote how Pachauri had “forcibly grabbed my body by hugging me, holding my hands, forcibly kissing me and touching my body in an inappropriate manner. I kept pleading with him and telling him clearly not to do such things, as I found it extremely vulgar and repulsive to be touched in that manner, but it has had no effect on Dr Pachauri.” After the original complaint was filed, nine other women came forward accusing Pachauri of sexual harassment while they worked at TERI. The order of the Delhi High Court does very little for these complainants – the order specifically deals with the media’s “duty to report” and the public’s “commensurate right to know”, and not the sexual harassment itself. Neither does the order enforce the implementation of the law on sexual harassment. [caption id=“attachment_4354791” align=“alignleft” width=“380”]  File image of RK Pachauri. Reuters[/caption] Last week, a Supreme Court bench of Chief Justice Dipak Misra, Justices DY Chandrachud and AM Khanwilkar, was also concerned about the effective implementation of the Protection of Women from Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), particularly in the private sector. A Delhi-based NGO named Initiative for Inclusion Foundation (IIF) had filed a PIL through advocate Esha Shekhar stating that there is a lackadaisical approach in the implementation of the Act and that even local district officers and complaints committees were not being appointed and this meant that victims did not have an appropriate forum for redressal of complaints. The bench of the apex court asked all the states to file their response on the plea, while petitioner, IIF itself was asked to provide suggestions on how best to implement the law. In my opinion, instead of asking for suggestions on the implementation of the law, the judiciary should operationalise the legal policy within the Act by moving on the Pachuari case. It has been almost three years since the original complaint against the former TERI chief, and barring the FIR, very little has happened on this front. In fact, this case is an example of how inadequate the POSH Act has been in the overall trajectory of the adjudication of sexual harassment at the workplace cases. As per the POSH Act, there are broad obligations on organisations to support complainants. In fact, the Act states that organisations are obligated to “provide assistance to the woman if she so chooses to file a complaint…under the Indian Penal Code” and “cause to initiate action, under the Indian Penal Code or any other law…against the perpetrator.” There is, until now, no evidence of such support by TERI to the complainant(s). In fact, when the complaint was filed, Pachauri still featured as the Executive Vice Chairman of the Governing Council who was “on leave”. Pachauri was removed from this position only in July 2015. Throughout the process, TERI’s management steadfastly claimed that they have followed the Act in “letter and spirit”. However, in response to the complainant’s allegations of harassment in her resignation letter, TERI stated that her allegations were “false and baseless” and even went as far as to reveal her identity. The POSH Act, in Section 16, states that information regarding the justice process may be disseminated but “without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses”. TERI also was reluctant to initiate any disciplinary action against Pachauri, in blatant disregard to the Act. And while throughout the process, TERI has distanced itself publicly from the complainant, its relationship with Pachauri stands more strengthened – TERI even promoted Pachauri after the charge-sheet was filed. These are examples of how TERI completely and utterly discounts the “Employers’ Obligations” under the Act. The judiciary should be mindful of the facts of the Pachauri case — an inefficient and disinclined Internal Complaints Committee (ICC), an organisation that is blind to its obligations under law and a privileged man who remains protected despite his crimes. The judiciary should not ask NGOs and the civil society about how best to implement the law, but ask itself the reasons why the law has been un-implementable. So far, the POSH Act has been treated like a compliance issue by the private sector, a series of mundane tasks to be completed without fully comprehending the overall ramifications of its provisions. What the judiciary needs to do is to adjudicate on the Pachauri case rapidly and steadfastly, and put its activism into use so that through precedents – both ratio decidendi and obiter dicta – the life-cycle of a sexual harassment case is understood. In fact, the Vishakha guidelines, which paved the way for the POSH act, were itself formulated through the activism of the Supreme Court in 1997. At this juncture, the implementation of the Act has to be led by example and by the judiciary; or else, the law will continue to be a banal, paper-pushing regulation.