Editor’s Note: The article below is based on our quick reading of Chapter Four of recently issued Report of the Committee on Amendments to Criminal Law. This was issued by a three-expert committee. Two of the three experts are retired Judges of the Supreme Court of India. We would welcome any corrections or critique of our understanding of this Chapter.
Months ago, we witnessed an interesting interaction on CNBC. In the midst of a show, we heard a CNBC female anchor snap at a CNBC male anchor “Don’t look at me like that, M“, (names withheld for privacy & irrelevance).
We remembered this little interaction as we read about the report released this week by India’s three-person Commission, the commission set up to make recommendations to amend Criminal Law & eliminate harassment & violence against women. We took a quick look at Chapter Four of the Commission’s report titled Sexual Harassment At the Workplace. The Chapter begins with the assertion that “this evil is still rampant in Indian society“.
A few pages later, we came to the proposed “Definition of Sexual Harassment“. Apparently, the definition under an earlier bill contained the term “unwelcome“. Since this term is open to interpretation, the Commission suggested insertion of the following explanation after the definition of “sexual harassment“:
- “Explanation: In determining whether the behavior or act complained of is unwelcome, one of the factors to be given due weight shall be the subjective perception of the complainant”. (emphasis ours)
So in the above case, the subjective perception of the CNBC female anchor, (Anchor F) is enough. Therefore, her mere accusation against the CNBC male anchor (Anchor M) suffices for the complaint to be heard.
If she were in India, where could Anchor F file her complaint? Not with CNBC’s Human Resources Department, but with a special “Employment Tribunal”. By the way, all
complainants are by definition women. The Commission refuses to acknowledge the possibility that a man could be a victim of sexual harassment or of any type of gender abuse.
Who sits on this Tribunal?
- “two retired judges (of which one must be a woman), two eminent sociologists and one social activist, who has sufficient experience in the field of gender-based discrimination”. (remember gender-based means against women).
This Tribunal, as we understand the report, is expected to be outside the purview of the Judiciary, at least that of the local courts. The Commission further suggests that “the Tribunal ought to follow a summary procedure… to expedite the resolution of disputes.” What summary procedures does the Commission recommend?
- “It is expected that the typical complaints of sexual harassment will not be evidence-intensive…. It is therefore proposed that,…, the Tribunal ought to be free to choose its own procedure for each complaint. Specifically, it is suggested that parties shall not as a matter of right be free to call upon witnesses, unless permitted by the Tribunal in the facts of this case.”
So in our CNBC case, Anchor F would file a complaint against Anchor M with the Tribunal. What type of complaint must she file and with what evidence? What could the Tribunal do?
- The complaint can be oral and not in writing. Anchor F is not obligated to offer any evidence in support of her claim apart from her “subjective perception“.
- “The Tribunal will choose its own procedure for the complaint.”
- “And the Tribunal can refuse permission to” Anchor M “to call witnesses” such as the third CNBC anchor hosting the show, the producer, cameraman, control room staff who witnessed the claimed harassment.
Does male Anchor M have any chance whatsoever in this Tribunal? Not, in our opinion. He is a goner.
And he cannot appeal to his state courts because, as we read the report, the Tribunals are not subject to state law. All he can do, as we understand it, is to appeal to the Supreme Court of the land and that Court could refuse to hear his appeal.
Frankly, all he can hope is that Anchor F will reconsider and withdraw the complaint. But wait, what does the Commission say about that?
- “We are further of the view that the complainant shall not be permitted to withdraw a complaint once made to ensure that all cases of sexual harassment are properly dealt with under the laws of the land.”
So a complaint filed by Anchor F against Anchor M in the heat of the moment cannot be withdrawn by her. In other words, Anchor M could be judged by this Tribunal even in the absence of a current charge against him. The Tribunal, per its whims of the moment, can refuse Anchor M the permission to call witnesses. And whether Mr. M actually did anything wrong is entirely immaterial to the process. This is the Commission’s idea of “properly dealt with“?
What can CNBC Management do? Well, they are,
- “free to set up an internal committee, if they so desire, however the complainant”, Anchor F, “cannot be compelled to approach such an internal committee prior to approaching the proposed Employment Tribunal.
In other words, CNBC can do absolutely nothing for Anchor M even if they know him to be innocent.
Does Anchor F face any penalty whatsoever for making a false or malicious complaint? Apparently, she would under the current version of the Bill. The Commission feels such a penalty is “liable to misuse“. So the Commission writes in its report:
- Accordingly, it is our recommendation that the said provision [a penalty] be deleted so as to foster an environment conducive to the making of complaints under the proposed legislation. The Tribunal shall always have the option of reprimanding the aggrieved woman…. in its order in relation to any falsification.
So Anchor F is at most subject to a reprimand from the Tribunal while Anchor M could go to prison and/or pay a fine not to mention the destruction of his career.
Why? Because of what the Commission considers its goal – to create “an environment conducive to the making of complaints“, regardless of whether the complaints are true or false.
This what India’s Commission of Supreme Court Justices calls recommendations to achieve Gender Equality! No wonder they call it “Incredible India“! And these “Gender Equality” recommendations are hailed by Women Activists in America!
So CNBC Anchor M, be smart and don’t ever go to India. Because just a look at at a CNBC female anchor in India could subject you to what we describe above. Thank your stars that you live in the United States of
America, a land where the Constitution grants all citizens equal human
rights and freedom from abuse from any/all Government agencies.
But what about CNBC’s male anchors located in India? Unfortunately they are on their own.
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