Jurisdiction, Conciliation and other remedies, in conversation with Dr. Devika Singh (Part II)

In this part of the interview, we discuss with Dr. Singh whether an incident of sexual harassment between students going out in their personal capacity prior to the pandemic would come under the IC’s jurisdiction and whether a virtual space comes within the notion of ‘campus.’ We then go on to discuss conciliation as a recourse available to survivors and Dr. Singh’s opinion on how conciliation under the UGC is different from that of the PoSH Act. We also delve into what recourse a survivor can have if they are denied an IC proceeding by their HEI due to the lack of resources for it to be conducted virtually.

Q. What about cases where there are personal interactions happening between the students and any member of the HEI/ with other students, which is not happening as a student per se but out of personal relations? Before the pandemic, people had gone out in capacity of their personal relationships, would it fall under the IC’s jurisdiction? When we shift this to a virtual space, does this put pressure on the notion of territory covered under ‘campus’?

First let us look at the example that you spoke of and what the IC’s say. For example, in case two students go to a mall and one of them molests the other. At that point, this incident will rightly be covered the Indian Penal Code because they are not at a student relationship vis-à-vis the institution.

However, say post the altercation, the harasser goes back to college and starts talking ill about the survivor and the incident while discussing it with their peers, it directly affects the student’s life and learning environment of the survivor. Under the UGC Regulations, learning environment is included in the purview of sexual harassment when considered as a hostile learning environment. The survivor hence starts feeling this hostility from the batchmates solely due to this incident and the discussions that took place around the same. Therefore, it is important to note whether any elements of the case travelled back to the campus. If they haven’t travelled back to the campus at all, then the IC may form an opinion that this incident has nothing to do with the learning environment.

The current situation is definitely putting a lot of pressure on the notion of territory. The easiest way to understand this is through proximity. This concept of “proximity” is based on a case by the Delhi High Court. In this case, the act of sexual harassment that happened between the boss and the employee at fellow colleague’s funeral, was held by the IC to be within its jurisdiction. Does the employer in case of a workplace, or in the HEI, in this case have control of the situation?

When you start breaking down things as per this proximity rule, often an IC will be able to find that certain things are related to the learning environment/workplace and hence come within the confines of the campus.

Further, if you look at Section 3 which talks about the responsibilities of the HEI’s. This is important as it talks about the prevention aspect of it. It says that it “reinforces commitment to creating its campus free from discrimination, harassment, retaliation or sexual assault at all levels”. Once this comes into light, we need to cover a broad range of relationships as well. However yes, if two people who seem to have no hierarchy of power between them, are interacting for something which is not entirely necessary for the learning environment, then an IC can say this is something that is not under their purview and can be filed under the Indian Penal Code. Of course, I would take the conservative view and say that the responsibilities of the HEI kick in when the complaint is filed as a penal offence since they have to commit to a zero-tolerance policy by helping the survivor through the entire experience and process.

I am glad that with the coming of the Information Technology Act, the Evidence Act got challenged and several new definitions were conceptualised. For example, courts started considered WhatsApp as a legitimate source of communication where people can form contracts. Law has realised that we need to grasp technology rather than being ignorant about its impact which may leave gaps in legal interpretations.

Q. Could you shed some light on the process of conciliation as a viable recourse for a survivor in your experience? Also is there any difference in the conduction of conciliation as under the PoSH Act and the UGC Regulations?

This is an interesting point brought up as it highlights a flaw in the UGC regulations. Issues like this are usually taken care of under the (‘PoSH’). In a case we dealt with, a male colleague invited a female colleague over to his house for dinner. It got a bit late in the night and neither of them would have been able to drive back to her house so she had to stay the night. They were in 2 separate rooms, but later in the night, the male colleague tried to get into the same bed as her. She pushed him away and filed a complaint for this incident. The survivor stated that she is unable to sit with him at work and can’t see him straight.

I would first like to explain conciliation as a process of redressal under the (‘PoSH’). It is a process that can only happen as a first step and before the inquiry starts. It is always a starting point and if the survivor agrees to it then there will be no inquiry. In such cases where there is a grey area, i.e. the survivor merely wanting the workplace to be cleared, conciliation may take place. In this matter, the perpetrator apologized and understood that the survivor wanted him out of sight. Both the parties were transferred so they get their time off and that the trauma could settle. An agreement towards the same was filed by the parties and IC members for its implementation. Conciliation can be a very effective device for issues where the person does not want disciplinary action against the harasser and just wants to be in a better space. I think the (‘PoSH’) has got it right by making conciliation an initial stage of the process itself. One would not always want to go through the process and trauma of an inquiry.

Under the UGC Regulations however, conciliation is clubbed under Regulation 8. The regulation starts with the entire process of the inquiry which is done in a detailed manner. By the time the person responds to the complaint, this becomes a one on one battle where the harasser presupposes that there is going to be action against them and they’ll have to fight it out. The moment you put the parties under that position, and THEN propose conciliation the window is lost. This is why I think there is a disconnection in drafting. Though I believe that a more sensitized IC will understand if a person says that they do not want to take disciplinary action but also do not want to interact with the harasser on a daily basis. This is something conciliation can deal with as a person will not have to go through the whole process of inquiry after maybe changing their electives or classroom for example. Having said that, people need to be sensitized and trained to not pressurize the aggrieved party. I particularly do not like the term ‘reconcile’ as conciliation has nothing to do with reconciling and they are used in exchange of the other very often. This is not reconciling; this is someone wanting to be in a better off position by having the power to choose whatever they feel will be the most helpful for them from the process

Q. Do you have any advice to survivors who are being denied IC proceedings during this time as IC’s justify it through not being able to undergo virtual proceedings?

This is a really isolating experience. We have come across 2-3 instances where survivors have been denied their rights to the proceedings. IC’s need to understand that when a survivor is coming forward to IC for redressal, they have many choices in the country today. They can go the police, National Commission of Woman (‘NCW’), SHE-Box and Local Complaints Committee. If the survivor is choosing to come to an IC for redressal, it is only because of the trust she reposes in an IC. They break that trust when they ask a survivor to go away and deny them access which is something that an IC needs to really consider when they make such excuses during these times.

If, however, a survivor finds themselves in a situation where their case is not considered by the IC, the correct course of action would be to go to the Local Committee, NCW or if they have the strength- to the police. I know going to the police is something that none of us would want to do particularly in cases of this nature where there are many questions that may be raised on the survivors’ conduct with the imposition of stereotypes. But yes, If the IC is denying your claim, document it well, send emails to the committee and let them know that your only recourse now is the police. There was a High Court case where a group of women had complained about sexual harassment and the IC refused to entertain their plea. The women went to the police and they were rusticated for bringing a confidential matter out of college. The High Court came down heavily on the college and said as the HEI, it was actually their responsibility to take care of the concern. They did not entertain the claim, nor did they help them go the police. Further, once they went to the police, they retaliated against them and as a result the college was fined. Therefore, when there is more publicization of cases such as these, I think there will be more awareness within the IC and the college authorities about their responsibilities and understanding that it is much better to take care of a problem when there is still an element of a trust.