What not to do with a female intern!

Hon’ble Justice Ashok Kumar Ganguly; a few months ago this name was synonymous with landmark judgments such as the 2G spectrum, president’s power of pardon, and violation of fundamental rights during emergency among various others. But come November 2013, and the now retired highly respected member of the Bench is known for a completely different thing, i.e. for being the Supreme Court judge who allegedly tried to take advantage of a young law intern working under him.

24th December 2012, exactly a year ago from today, what supposedly transpired in the hotel room of Le Meridien between the NUJS student who goes by the name of Stella James and Mr. Justice (Retd.) A.K. Ganguly, must have been a cause of trauma and concern for the said student then, and has undeniably become something akin to it, for the Justice (Retd.) now. The case first came to light on 11th November 2013, through the Times of India, where the victim’s blog had been cited and it was shown how such incidents are ‘not uncommon’ with the Higher Judiciary; though ‘speaking out against them is nearly impossible.’

The basic framework of the plot still remains the same in both Stella James and Justice (Retd.) Ganguly’s version of what actually happened that fateful day. The contradiction lies in the fact that Justice Ganguly has throughout been denying the charges placed on him by the 3 member committee comprising of Justices R M Lodha, H L Dattu and Ranjana P Desai; while the law intern (and also the committee despite denying its jurisdiction to take any action on the pertaining issue) has maintained that the charges are true.

Justice (Retd.) Ganguly apart from denying the charges before the committee and the media, has also stated that no action can be taken against him under the newly amended law which makes sexual harassment an offence, since the said law was passed in 2013 while the incident has been reported to be of 2012 (punishment cannot be given for criminal offences ex post facto). What he has neglected though, is that de minimus non curate lex has never been applicable to cases of sexual harassment; it has always been a crime punishable by the law (recalling KPS Gill v. Rupan Deol Bajaj). Here, a slight problem is that Stella James as of yet has not filed any formal complaint to the police. Though, now after the committee has submitted its report, the police is free to take suo moto cognizance of the case and investigate it (as happened with Mr. Tarun Tejpal).

In a fresh move Justice (Retd.) Ganguly has written a letter to the Hon’be CJI stating his innocence and highlighting the issue that while he had been denied a copy of the petitioner’s (Stella James’) complaint and statements; the same is now out in the media due to a possible leak by a law ministry official. Also the use and distribution of facts from Stella James’ affidavit by Additional Solicitor General Indira Jaising’s open letter to the Prime Minister’s Office in which she asked for Justice (Retd.) Ganguly’s removal as Chairperson West Bengal State Human Rights Commission has been questioned by him. He further alleged that the whole fiasco has been done as part of a conspiracy, with the motive to malign his name.

Replying to Justice (Retd.) Ganguly’s 8 page letter, Stella James in her blog clarified her motive behind the whole action. According to her, she did not come out with the judge’s name earlier and lodge a police complaint due to her inhibitions and reluctance; and decided to bring out the matter through her blog instead because she felt “it was important to warn young law students that status and position should not be confused for standards of morality and ethics.” She has also said that Ms. Jaising had acted with her consent and hence was justified in giving out her story to the newspapers. Though she has maintained that it is her discretion whether to lodge a formal complaint or not and this discernment should be respected.

Again, the three bench committee in its report submitted to the Hon’ble CJI despite acknowledging Justice (Retd.) Ganguly involvement in the case stated “Considering the fact that the said intern was not an intern on the roll of the Supreme Court and that the concerned Judge had already demitted office on account of superannuation on the date of the incident, no further follow up action is required by this Court” and thus in a politically correct move absolved itself of all responsibility regarding the affair.

The Hon’ble Apex court is known to be a protector of women rights and has always been eager to go a step forward in the process of defending and guarding a woman’s dignity and honour. Despite all keenness it has shown in the past; the Hon’ble Court’s stand in the case at hand has portrayed a dismal aspect of the nation’s judiciary, and it is abjectly disappointing to see the matter being swept under the carpet in such a fashion. Here, the Supreme Court could have utilized its extra ordinary jurisdiction and taken the matter into consideration suo moto, though according to legal luminaries it would have set a bad precedent. But is a bad precedent really of more importance than a girl’s dignity and self-respect?

It can be stated without a doubt that had the said offender not been a former member of the judiciary; the attitude of the committee would have been drastically different. In no world can it be acceptable that a person walk scot free after trying to harass a girl sexually, only because he formerly was an Hon’ble Judge and still is sitting in a position as important as the Chairman of a State Human Rights Commission (West Bengal). It would be more appropriate if stricter action was taken in such cases in order to set forth an example that law cannot be mightier than the king; no one stands above the law!

But instead of taking action against the Hon’ble Justice (Retd.), what is being done instead, by the guardians of our constitution, is requesting the Hon’ble Chief Justice to remove the female staff assigned to them. Trying to pull off an Indira Jaising here; is it such a crime to speak out against harassment, My Lords?

The Devyani Khobragade Charade

Devyani Khobragade in the past few days has become a well-known name among most Indians, who like to be updated about the various ongoing on the world platform. A hot topic of debate among the human and civil rights activists, the proponents of diplomatic rights, the Indian and the United States government as well as the media of the respective nations, and not to forget the innumerable so-called intellectuals in our country who consider it to be their birth-right to have an opinion on each and every matter, however inconsequential. Being a similar non-entity with the high-headedness of a self proclaimed genius, how could I have restrained myself from commenting of this issue for long; and true to myself, here I am to opinionate on this very prominent issue of dispute which has been hogging the limelight (with discussions and arguments ensuing on each and every news channel one turns to) through both print and visual media.

Though the majority would be well aware of the facts of the Devyani Khobragade case; it is nonetheless important that I state them once more for public convenience. An Indian Foreign Service (IFS) official of the 1999 batch; Ms. Devyani Khobragade had been functioning as Deputy Consul General in the Consulate General of India in New York. On 11th December 2013 she was arrested by the New York Police Department for committing visa fraud and providing false statements to the immigration office, in order to bring a woman of Indian citizenship, Sangeeta Richards to the US for her potential employment there as her household help. After the said arrest was made hue and cry was made (in India) about the manner of the arrest and the alleged strip-search which was conducted on the diplomat thereafter.

The aforesaid incident of Devyani Khobragade’s arrest caused colossal outburst at various places in India and even the Indian government went as far as asking the US government to issue an unconditional formal apology, removing the barricades from the US embassy, asking the details of the salaries of all domestic help, gardeners and other staff employed by US consulates in India and also blocking perks such as cheap alcohol and food imports, for embassy employees (a very tough and brave move on part of the otherwise silent and laid back Indian government on the mighty United States, if you ask me!).

The Indians have been blaming the United States for causing breach of diplomatic immunity provided to Ms. Khobragade and calling the action of the United States government ‘deplorable’ and even bringing the Dalit angle into the row, in the hope of garnering political support (courtesy:- Ms. Mayawati). The treatment of Ms. Khobragade has been linked with humiliating the nation and the belittling the nation’s pride and honour. The United States government on the other hand has maintained that the actions taken against Ms Khobragade were well within the ambit of their rights and in no way can be termed as violation of Vienna Convention on Consular Relations (VCCR) of 1963.

According to the United States, the Indian Diplomat in question was subject only to consular immunity and not the full fledged diplomatic immunity and hence the government was justified in taking action against her. Consular immunity offers protections similar to diplomatic immunity, but these protections are not as extensive and consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction. They may be tried for certain local crimes upon action by a local court, and are immune from local jurisdiction only in cases directly relating to consular functions. The case of fraud in having the visa issued is an act obviously falling beyond what can be called consular functions, and speaking in accordance with the law, the US was nothing but justified in taking the matter in consideration and ordering Ms. Khobragade’s arrest.

Despite all action against her, Ms. Khobragade was allegedly accorded courtesies well beyond what other defendants, most of whom are American citizens, get. As per reports by the US media and official statements issued by US government Ms. Khobragde was not handcuffed or restrained and neither her phone was seized; in fact she was provided with the opportunity of contacting people she wanted to and was offered food. These considerations show that the VCCR was followed during the making of the arrest and that legally United States stands rationalized in its action.
Substantiating this fact further, is the Indian Government’s action of transferring Ms. Khobragade to India's Permanent Mission at the United Nations, so that she could become eligible for applying for complete diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961. Though, it has to be realized that a new posting does not itself guarantee protection from acts done in the past but has to be ratified by the US government and in case it wants, immunity can be granted (as previously happened in the case of Saudi Prince Abdul Azeez). Another way of saving herself in front of Ms. Khobragade is going for an out of court settlement with the domestic help (Prabhu Dayal case).

This case has not only brought into light the question of immunity to the diplomats, but has also brought forth graver offences and matters of much more concern such as human rights and dignity of the not so well-of sections of the society (such as domestic helps), trafficking, mishandling and abuse of the powers provided by the virtue of their posts by bureaucrats and similar others. Allegedly it has been stated that Sangeeta Richards was paid less than the required minimum wages ($9.75/hour) for the work she did; in a country such as the US; which is very particular about the basic needs and rights of the people residing there. Also the act of committing visa fraud is akin to human trafficking, again a gross misconduct and violation of human rights.

What is deplorable in my view is not the action of the United States government, but the stand taken by our government in trying to protect Ms. Devyani Khobragade from bearing the brunt of her wrong doings. It is commendable and laudable on part of the United States government that they took this matter of trafficking, fraud and human rights violation with as much sincerity and effort. Instead of condemning the arrest and talking about the dignity of Ms. Khobragade, it is important to think about the numerous Sangeeta Richards who have to let go of their right to a dignified life every day, with the low salary paid to them, and the humiliating conditions they are subjected to. Even today, we in India have failed to provide justice to our domestic helps and more often than not they are treated worse than animals (with occasional incidents of signs stating servants, washermen, drivers not allowed put up on lifts); we can at the very least let a country which treats all its residents with equality, do so in peace.

Decision on S 377: Misplaced but Perhaps Correct

Today, on 11th December 2013, the Hon’ble Supreme Court gave the ruling in a much awaited case, i.e. the NAZ Foundation Case; a case which has been sparking debates ever since the suit was filed, and more so after the Hon’ble Delhi High Court in this case declared Section 377 of the Indian Penal Code to be partially ultra-vires. A great deal to the disappointment of the homosexual couples in India and also the LGBT right activists and supporters, the Supreme Court’s decision of setting aside the High Court’s order, and criminalizing homosexuality once again, came as a massive let down.

Much like various other people who consider themselves progressive in their thoughts and actions, I too was hugely disappointed with this ruling which prima facie shows the regressive attitude of our society and comes as one plummeting us back to the Dark Ages. After all, how can we claim to be a nation accepting all kinds of diversity, if we deny people the very basic right of choosing their partners; however objectionable it may seem to our heterosexual sensibilities.

But, on deeper thought, a contrary opinion occurs to me regarding the correctness of this decision and a part of me accepts it to be appropriate. This definitely is not because I have some issues regarding someone’s different sexual preferences or that I am moral policing around; not in the least. I am not saying that I agree with the grounds that have been given for setting aside the High Court’s order; for whatever I have come to know, I fail to find myself in sync with it. In fact, many of the reasons are not what I would have expected from an institution as high as the Hon’ble Apex Court. What triggers my changed outlook is the fact that in my view the laws regarding sexual preferences and sexual molestation are defective in their very basics.

To think of it, in today’s world, we can come across news articles regarding forced sexual molestation of men by other men…..and there would definitely be cases where women might be sexually offending other women, children (both male and female). I agree it is disturbing to think that women could commit such grossly deplorable act; but we must not rule the possibilities. What is to be looked into is that the penal code does not classify such offences being committed against men or being committed by women as rape. In such cases, the only redressal the victims of such offences can achieve is through Section 377 which talks about unnatural offences; otherwise these cases would go unnoticed and unpunished.

Therefore, before decriminalizing S377 what needs to be done is making rape laws gender neutral and coming to terms with the fact that men can be victims of sexual assaults too and they need equal protection of law. Unless this step is taken, and Section 377 is decriminalized without such change in the rape laws the male victims of sexual assault would have no remedy available to them.

Another thing which can be done is adding a provision in Section 377 itself, that if the intercourse happened with the consent of both the parties, it would not amount to an offence. Consent, which is currently not seen as an important factor with regards to S377 needs to be given weightage in deciding the cases. 

The Apex Court has correctly laid the decision in the legislature’s hands regarding the legality of Section 377, whatever be the reasons provided for the same. It now falls upon the legislature to take a strong stand and decriminalize homosexuality as and when practiced by two consenting adults. Homosexuality in my firm belief is not something which should be considered illegal, violative of the law of the land and of the nature, and is definitely not something which is criminal enough to be punished with life imprisonment or imprisonment for 10 years (as per the current statute). Unnaturality is a law of the nature itself and it needs to be acknowledged and understood; criminalizing it is in itself committing an offence and robbing people of the right to live with dignity, the right to equality before law and the right to privacy.

Hence, I would say that keeping in mind the unavailability of another forum to tackle with sexual offences against men; it is only considerable that Section 377 be kept criminalized for the time being. What needs to be seriously pursued though is achieving a mechanism which accepts gender neutrality in terms of sexual offences and after this is achieved legalizing homosexuality. It might not be the best possible statutory provision…..but it definitely is the only option available to us at the moment to protect those who become victim to such activities, and are forced into it without consent.