In the face of unprecedented attacks by the present JNU administration on GSCASH, the JNUTA General Body Meeting held on 26 August 2017 had constituted a four-member committee, mandating it to look into rules and regulation for constitution of ICC, and the ways in which JNUTA can act to protect the character of GSCASH in this present context. We reproduce the CSub-Committee’s Report in full below.
JNUTA Sub-Committee Report on the Attack on GSCASH
The committee notes that the institution of GSCASH which for eighteen years has catered to all sections of the University in both sensitization and enquiries into complaints of sexual harassment is facing an unprecedented and relentless aslsault by the current JNU Administration.
Role of the present JNU Administration on GSCASH
Machinations by JNU Administration in the Executive Council
Unsuccessful in its attempt to directly and indirectly manipulate GSCASH proceedings on the complaint case against a person in a position of authority, top members of the JNU administration openly discussed this case in the Executive Council in its 264th meeting dated 21st June, 2016 flouting provisions of Sections VI, VII and X of GSCASH rules. Despite opposition and dissent by elected faculty members in the Executive Council (EC henceforth), the GSCASH was instructed by the top officials of the JNU administration in writing that it “may drop the case” against this defendant based on a set of minutes of the EC that was once again manipulated. For example, it had been pointed out by EC members during the course of the discussion that the Executive Council has no locus standi under existing rules to discuss the complaint case till GSCASH has completed its enquiry and submitted its report. It had been pointed out that the administration was trying to convince the EC of the innocence of the defendant based on just his statements to the administration. The existence of the complainant, her/his security and right to justice did not even matter to the JNU administration.
It was also pointed out that if at all any GSCASH matters of procedure was a concern for certain members of the EC, such discussion can happen only after inviting GSCASH to such a meeting. However, as has become the common practice of the present JNU administration, the minutes did not record the letter and spirit of the discussion, gave an illegal directive to GSCASH to drop a case (which makes all EC members except those who dissented party to this illegal interference and institutional overreach), but also resolved to hold an EC meeting to discuss GSCASH procedures.
It has also been brought to this JNUTA subcommittee’s notice that an external member of the Executive Council who has been previously indicted for sexual harassment was part of this deliberation advocating deliberate illegal interference in GSCASH matters.
The Travesties of the Garkoti Committee
JNUTA came to know in its GBM dated 25 August 2017 that the administration has now set up yet another committee consisting of 9 members headed by S C Garkoti ostensibly ‘to review the existing mechanism of GSCASH and to give its recommendations among others for forming Internal Complaints Committee’. This committee was comprised of an overwhelming majority of male members, with no demonstrable experience of work on sexual harassment other than the legal counsel and with no members except one with any association with GSCASH and demonstrated expertise and specialization in gender in international politics.
Despite the urging by that one member for wide consultations and several other suggestions that showed the compliant structure and nature of GSCASH Rules and Regulations with all existing laws, these were summarily ignored (because of which she was purged from the final report of the committee). Instead, a sub-committee of this committee actually formulated the recommendations, which just did a copy–paste of the MHRD gazette notification of 2016 of UGC regulations, without a single consultation with GSCASH.
It must be noted the same legal counsel who is on this travesty of a committee headed by S C Garkoti had vetted the GSCASH Rules and Regulations 2015 on behalf of the then JNU administration and found the GSCASH rules complaint during its adoption in September 2015 with all existing laws and rules of the land. Is it because of this constrained situation and prior knowledge that this committee could not stick to any ‘review of the GSCASH mechanism’ which was the substantive part of its TOR from which its recommendations on ICC were supposed to follow?
Why a Nominated ICC is Unacceptable
It is the composition and working of the Garkoti committee that itself gives ample indication of what kind of nominations may be made to the ICC. As we have pointed out in the earlier section, this committee comprises of members who seem to have been picked up for considerations other than their expertise or experience of working on sexual harassment. The committee had only two women members from JNU. IT did not consider any representation from students, teachers, non-teaching staff, among others. Neither did it deliberate with any of these constituents.
Further, the treatment meted out to the only member of the Garkoti committee who has expertise in these matters is a testament to the fact that this committee essentially functioned on the principle that is purgative to knowledge on sexual harassment, good counsel and concern for the creation of conducive atmosphere on the campus. In her written communication to the Garkoti Committee which JNUTA has got access to and has released to through a statement, this ex-Chairperson of GSCASH has called out the present draft for its dilution of issues of sexual harassment and scuttling of inclusive and autonomous nature of GSCASH. By ignoring her interventions and by dropping her as member, the Garkoti Committee betrays a process which is bereft of any serious examinations of issues, deliberations, or discussions. In fact the process seems to be guided by malafide intentions.
It was only on September 14, 2017 that the Registrar in a circular ‘informed’ the JNU community of the rationale of existence of ‘the committee to look into the formation of ICC’ and of it having ‘submitted its report for the consideration of the Executive Council’. The circular conveniently did not mention the first part of the TOR of the Garkoti Committee which was to ‘review the GSCASH mechanism’ – a task which the committee has failed to carry out.
The administration’s willingness to go against the letter and the spirit of the Vishaka judgment is clear from foisting of a non-representative committee by copy pasting abstract law rules. The committee itself has responded by showing little regard for the history of dedicated work by generations of JNU students and teachers. Their uncreative ‘framing’ of these new rules stems from this understanding that laws and rules are necessarily exogenous to an organisation—to be always imposed from outside. GSCASH rules were crafted inside the institution—a residential University from decades of work, reflection and struggle to be later upheld as a model to be emulated, and ratified by administrative bodies such as UGC.
Given our findings above, we request JNUTA to urge all constituents of JNU to examine whether the present set of actions by the administration vis-a-vis GSCASH do not amount to dismantling of a robust institution of internal complaints in an effort to scuttle enquiries of persons in powerful positions in this administration.
This so-called report of the Garkoti Committee which has failed its TOR has now been listed as an ‘item to note’ rather than an ‘item for consideration’ for the next Executive Council meeting (scheduled on the morning of September 18, 2017) – thus flouting even the earlier manipulated EC minute on it which had promised a discussion on GSCASH.
Why The Registrar’s Notice Countermanding GSCASH Elections is ultra vires
In parallel, the Registrar has issued a notice dated September 12, 2017 countermanding elections of GSCASH members from the various constituencies of the University till further notice. The registrar’s notice countermanding elections to GSCASH is a blatant case of institutional overreach and is ultra vires. As on the date of the notification, GSCASH rules stand as the only rules in the University on matters related to sexual harassment as per the Executive Council decision on 18 September 2015 vide resolution no (5.1/EC18.09.2015) and approved in the 44th JNU Court Meeting dated December 5, 2016 (under the present Vice-Chancellor).
Section X of these rules make GSCASH the sole authority over its rules. As per GSCASH rules, unions and associations in JNU of faculty, staff, officers and students are supposed to hold the elections in coordination with GSCASH. The registrar or any other official in the university has no locus standi to countermand any election to GSCASH.
It is clear from the above that the sole intention of this unprecedented attack on GSCASH is because the current JNU administration led by the current Vice Chancellor has been unsuccessful in manipulating the institution of the GSCASH to scuttle an enquiry against one of their own.
The JNUTA needs to remind the JNU administration that it would better insulate the institution from liability if the procedures of the internal complaints were rooted in experience, rather than unintelligent readings of broad set of guidelines that are further limited by the intent to do only the minimum. We would also like to remind the administration that it takes much more than a copy-paste sense of compliance to bring down levels of harassment.
Why GSCASH has to be protected from these attacks
For the sake of fairness and equality in dealing with complaints of sexual harassment, it is imperative that GSCASH-ICC is not reduced to being an old boys’ club inside the University for protecting one of their own. It is not difficult to understand that this would deter victims of sexual harassment on the university campus from lodging complaints with GSCASH which is the ICC in JNU in good faith to hope for justice and without fear of pressure from above, of lack of discretion, or of retaliation.
Vishakha guidelines envisage a complaints committee that builds ownership towards the commitment to elimination of sexual harassment and towards furthering of gender equality. GSCASH has through its painstaking efforts inspired this commitment in the JNU community for the last eighteen years. It is precisely this that makes GSCASH an institution that needs to be preserved with its unique characteristics of democratic and representative structure founded on elections and its autonomy which makes interference in its functioning by those in power almost impossible. This is what riles patriarchs and sexual harassers. This is why it needs to be preserved.
We emphasize again that the GSCASH Rules and Regulations were harmonized in 2015 with all existing law and regulation of the land after a year of deliberation by the broad-based committee headed by the then Rector in consultation with GSCASH and all other constituents of the University. This exercise while harmonizing GSCASH with the letter and spirit of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the J S Verma Committee Report, the Saksham guidelines of the UGC and the Vishakha Judgment, firmly preserved the autonomy of GSCASH from manipulations by the administration or any other party by providing and upholding:
1. Inherent democratic checks and balances entailed in its formation in which the administration have a minimal role (Section V.1 to V.4 of GSCASH rules and regulations)
2. Checks on the possibility of undue interference and attempts to influence outcomes by any parties using administrative power and authority (covered under Sections VI, VIII and X of GSCASH rules and regulations)
It is important to understand that any Committee such as GSCASH which has the responsibility to ensure gender justice needs to be autonomous of the power relations that may exist in the institutional set-up. The composition and the procedure of the composition of GSCASH in JNU as prescribed by the Rules and Procedures of existing GSCASH ensures the autonomy of GSCASH.
In a hypothetical situation that a complaint is lodged against a person occupying highest administrative positions in the administration, the proposed rules would apparently require such a complainant to invoke a procedure that would be heavily stacked in favour of administration through nominations and through co-option of inquiry committees. If the university administration is heavily represented in the complaints committee, they would give an impression of being biased in favour of those who are powerful in the university and it is the people in positions of power who tend to be harasser. This could amount to victims being required to necessarily complain to perpetrators of their harassment.
It is important to note that this dangerous set of actions originate in EC deliberations under this JNU administration that have been made to seem incidental to some other matters as we have pointed out earlier in this note. We cannot allow this slide on the slippery slope of institutional impropriety to culminate in the adoption of these new rules through deliberations in which persons who have been previously accused and convicted of sexual harassment participate, influence and create rules and structures which are heavily top-down and lacking any institutional check and balance against patriarchy to ensure fairness and justice.
In our understanding, which is based both on a review of eighteen years of the working of GSCASH and thorough acquaintance with the law, there is no legal reason for changing either the procedure of enquiries or the size and conditions of the composition of the GSCASH.
The UGC regulations of 2015 notified by MHRD in 2016 on this matter actually suggest the way forward. Section 2(1) of the regulation suggests that the Internal Complaints Committee (ICC) should be constituted by an HEI under sub-regulation (1) of regulation (4) of the said Regulation. It also states that ‘any existing body already functioning with the same objective (like Gender Sensitization Committee Against Sexual Harassment – GSCASH should be re-constituted as the ICC) provided that in the ‘latter case the HEI shall ensure that the Constitution of such a Body is required for ICC under these regulations. Provided that such a body shall be bound by the provisions of these Regulations’.
Arguably, it follows that GSCASH as a body is required for the formation of the ICC as defined under these Regulations; and GSCASH Rules and Regulations can be harmonized with the Regulation as per procedure established by statutes. Thus in our view, the only substantive meaning of adoption of UGC Regulation is by following clause X of the GSCASH Rules and Regulations.
There are example of other institutional bodies which have broadly followed this process of harmonization while retaining institution specific democratic practices and checks and balances. Here are three instances:
I. The Gender Sensitization & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 which came into force through a notification in the Official Gazette dated 6th August 2013 in its Chapter (COMPOSITION & CONSTITUTION OF GENDER SENSITlSATION & INTERNAL COMPLAINTS COMMITTEE ) in its Clause 4.2 in addition to nomination of some members to this body by the CJI, while giving representation to all its constituencies have accepted elections as a process for membership:
- (c) one or two members to be elected by General Ballot of the Supreme Court Bar Association who shall be registered member of the Supreme Court Bar Association forat least 10 years out of whom at least one shall be a woman;
- (d) one woman member being a member of the Advocates-on-Record Association elected by General Ballot of the Advocates-on-Record Association;
- (e) one woman member being a member of the Supreme Court Clerks Association elected by General Ballot of the Supreme Court Clerks Association;
II. The Committee for Prevention of Sexual Harassment (CPSH) constituted at the Ambedkar University, Delhi is a 26 member committee representing all constituencies-Students, faculty, non-teaching staff-that are directly elected.
III. University of Hyderabad, in its recent order has restricted elections only to student representatives. But it also has allowed representation from Student Union and Teacher’s Associations.
While, all these institution specific rules and regulations mentioned above have been declared to be in consonance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the latter two have also been declared to be in harmony with the UGC Regulations 2016. What is clear from the above examples is that election as a process of membership is not “ultra-vires” of the MHRD notification of 2016 of the UGC Rules of 2015 or the 2013 ACT on prevention of sexual harassment and has been accepted in all the instances.
So the question here is why is the JNU Administration determined to do away with a democratic election process which has been part of the established Rules and Procedure of GSCASH in JNU? Why is the JNU Administration afraid of a democratically elected GSCASH teacher’s (or Staff and Officer’s) representative? Why does it want to reduce the total number of student representatives on the committee? Why is it not interested in a serious process of consultative harmonization of the UGC Rules of 2015 with the GSCASH rules?
From our findings, summarized above, it is clear that the only reason for all these attacks is to populate the GSCASH with the JNU administration’s nominees, and thereby to influence the course and findings of enquiry committees and thus completely scuttle the basis of fairness and the basic premises of gender justice.
This committee recommends that JNUTA prevails on all Executive Council members and particularly those who are its members to rise to the occasion to:
1. Prevail on the JNU administration to withdraw the ultra vires notification by the JNU registrar of countermanding of the elections to GSCASH.
2. Prevent blatant misuse of power in cases of sexual harassment and not become complicit in denying justice to complainants and being partisan in helping defendants by flouting rules and regulations which have been put in place by its own resolutions and further ratified by the JNU Court.
3. Ensure that no EC member who has been accused or indicted for sexual harassment in the past or at present should be instrumental in subverting GSCASH rules and procedures and involved in any discussion on compliance with rules on gender justice and prevention and/or redress of cases of sexual harassment.
4. Create mechanisms of widespread, inclusive and substantive deliberations with GSCASH and all other constituents of the University and outside along with consultation of experts who have a proven and well-known track record of expertise on questions of gender justice and procedures of natural justice.
5. The only substantive meaning of harmonising of UGC Regulations has to be premised on the following of clause X of the GSCASH Rules and Regulations to the letter.
If the Executive Council continues to endorse these attacks on GSCASH, JNUTA should reserve for itself all possible means of struggle and resistance in protecting the democratic, autonomous structures and powers of GSCASH.