In October 2017, a list (popularly known as LoSHA) of academics accused of sexual harassment was circulated over social media. Many denounced the list; many stood by it vociferously. It opened a debate between two seemingly alternative approaches — public/online lists, which may eventually lead to public shaming, versus due process. These ideas have been positioned in public discourse as a binary, often to an extent where seeking recourse from one automatically precludes the other.
Here, we, concerned students and former students of Ashoka University, ask — does due process only involve following rule/law/policy to the letter (which it wasn’t in this case)? Or should procedures be elastic enough in order to re-calibrate boundaries of fairness and justice so that trauma caused to the affected parties can be appropriately addressed and alleviated?
On April 6th, 2017, a complaint was filed with the CASH (Committee against Sexual Harassment) of a university in Delhi (which is not Ashoka University) against Mitul Baruah, a faculty member of Ashoka University. Later, Baruah’s name also came up in the LoSHA (courtesy: another survivor). The survivor, with whose consent we are writing this letter, persistently sought institutional justice which is where the critics of ‘the list’ have urged survivors to put their faith and energies. We believe that this particular instance of the process has produced a gross miscarriage of justice.
After examining the complaint, this CASH observed that “the interactions [between the complainant and the defendant] were largely structured around the premises of the workplace especially the defendant’s office and the commutes to and from the workplace.” It concluded that the relationship between the complainant and the defendant involved “manipulative consent” on the part of the defendant along with an “abuse of patriarchal power in the professional sphere centred around the workplace”.
Based on this report, the defendant was banned from the entire campus of that university and the report was forwarded to Ashoka University “for a detailed enquiry”.
After the receipt of the report, Ashoka University’s CASH (Committee Against Sexual Harassment) reached out to the survivor and accepted her complaint.
According to Section 13 of Ashoka University’s CASH policy, 5 members from the CASH are to be designated as the ‘Screening Committee’. This screening committee is supposed to determine if a formal inquiry by CASH is needed. Instead, an ad-hoc committee was constituted. It engaged three CASH members and one member from Ashoka University who is not part of CASH. This is one of the first instances where the process followed is in contravention with Ashoka University’s CASH policy. The survivor was informed about the ad-hoc committee on October 19th, 2017 by a member of its CASH.
The survivor was deposed before the ad-hoc committee on November 6, 2017. But, she was not asked to furnish any evidence or a list of witnesses. Later, the survivor submitted the evidence to a member of CASH (who was not part of the ad-hoc committee) when requested on November 16, 2017.
While this important report of the ad-hoc committee has still not been made available to the survivor, she received Ashoka’s CASH report on December 18, 2017. The report underlined that this evidence was submitted after the ad-hoc committee completed its inquiry – which is an incomplete and unfair representation of events as they occurred.
Upon receiving it, the survivor immediately responded to it, registering her disappointment with the report. The survivor drew attention to the inaccuracy of the statement about her furnishing the evidence after the deposition and not before. She pointed out that she was never asked for evidence by the ad-hoc committee, and that had an official request for such evidence been made by the ad-hoc committee she would have provided it at any time. She was only asked for evidence by a CASH member, through their personal email address, well after she was deposed. She pointed out that the evidence was furnished to the CASH member on the member’s personal request.This CASH member was not part of the ad-hoc committee. She also pointed out that by not providing the survivor with a copy of the report before it was finalised and not allowing her to make a representation (comments and disagreements) against the findings, the CASH procedure was in violation of Section 20 (e) and 20 (f) of the university’s CASH policy. This disregard to CASH procedures fails to provide a fair process of seeking justice to the survivor.
During this process, the survivor was prevented from accessing transcripts of her deposition even after requesting it. In doing so, Ashoka University seems to have used the confidentiality clause to protect the interest of the defendant instead of the survivor.
Ashoka University’s CASH report ostensibly agrees with the (un-released) ad-hoc committee’s findings that the actions of the defendant did not fall within the ambit of sexual harassment at the workplace as defined under Ashoka’s CASH policy and the Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act 2013 and rules under it. However, such an assertion ignores the CASH report of the other university which says that the interactions between the survivor and Baruah were “largely structured around the premises of the workplace (especially the defendant’s office) and the commutes to and from the workplace”. It also overlooked the fact that the CASH report of the other university concluded that there was “abuse of patriarchal power in the professional sphere centered around the workplace”, and that there was manipulative consent involved. There is no clarity in Ashoka University’s CASH report on why it directly contradicts the CASH report of the other university.
The Ashoka University’s CASH report expressed that Section 19 of the Act places an obligation upon the employer to treat sexual harassment as misconduct. It states that such misconduct is not restricted to sexual harassment at only the workplace, but also includes sexual harassment in general.
While, the CASH of Ashoka University does not express any “final opinion on the guilt of the defendant”, it does emphasize that the “allegations made in the complaint are of a fairly serious nature and could possibly involve a criminal offence”. It recommended that the Vice-Chancellor of Ashoka University take “appropriate measures to inquire as to whether the defendant is guilty of misconduct”.
Following this, a three-member Disciplinary Committee was constituted by the Board of Management.
The Disciplinary Committee report agreed with the findings of the ad-hoc committee report that the actions of the defendant would not fall under the ambit of sexual harassment at workplace. Again, it ignored the CASH report of the other university which found that the interactions between the survivor and defendant were largely structured around the premises of the workplace especially the defendant’s office and the commutes to and from the workplace. The Disciplinary Committee report made no mention of any punitive measures to be taken even though it found the defendant “guilty of misconduct according to all ethical norms of professional conduct and conduct at the workplace”. The report only recommended that “legal advice should be taken by Ashoka University”.
This Disciplinary Committee report was made available to the survivor after more than two and a half months of it being signed by the members. The survivor, having sent multiple emails asking that this report be made available to her, was asked to physically collect it from Ashoka University.
Section 13 (e) of Ashoka CASH policy explicitly states that at no point should the defendant and the complainant be put in a situation where they might face each other. Here, the university failed to uphold this particular section. While collecting this report, the survivor came in contact with the defendant despite having explicitly requested the university administration that this not happen. This experience severely traumatised the survivor since she had come in contact with Baruah for the first time since her complaint on April 6, 2017 at the other university.
This process has spread over 280 days which we feel shows a lack of empathy for what the survivor went through during the time.
During this time, she received threats over the phone which pushed her to file an FIR. The defendant was listed as the only prime suspect based on the FIR.
In addition to this, she was also trying to recover from the trauma during the whole process which started early 2017 and continues till date. As one can see from the timeline, all she received were false assurances from the administration intended to mollify rather than deliver long overdue justice.
On one occasion, before the survivor was called to receive the Disciplinary Committee report, the administration of Ashoka University provided false hope and assurances that the Board of Management would convene on March 28th, 2018 and come to a final decision based on all the reports. But, she was called to collect the Disciplinary Committee report which recommends no punitive action, only after multiple mails for more than a month.
Ashoka University, in its mails and actions, has failed to acknowledge the complexities of human interactions. It has conveniently switched from stating that the inquiry “needs more legal work than anticipated” to expressing that Baruah is “not guilty of sexual harassment”. Finally, the administration tells the survivor to be happy that “at least some action has been taken” and that “the question of informing [her] about the quantum of action doesn’t arise since the defendant has been declared not guilty of sexual harassment”.
We hope that this letter demonstrates that the due process here has done next to nothing to help the survivor. In fact, many of the CASH procedures were not followed as claimed. This process has further strained her mental and physical health. The university has failed to acknowledge how power (not just patriarchal but also positional) has been at play throughout the course of the relationship between the survivor and the defendant. Ashoka University seems to have urged the survivor a fair number of times to “please bear with us; the wait is frustrating for us as well” not realising that it is actually the ‘other’ in the equation with a lot of power, leaving the survivor with no choice besides waiting and persistently e-mailing. Consequently, what has really happened is that the authority has failed to acknowledge the failings of the procedures in their current form and has shown blithe disinterest in re-examining them.
Ashoka created an ad-hoc committee to look into the matter three CASH members (one of whom is not a part of Ashoka University) and one member from Ashoka University who is not part of CASH. This is one of the first instances where the process followed is in contravention with Ashoka University’s CASH Policy.
The report underlined that the survivor submitted evidence after the ad-hoc committee completed its inquiry. This is an incomplete and unfair representation of events since the survivor was only asked to submit evidence unofficially and after the inquiry closed.
The survivor was prevented from accessing her deposition even after requesting it. Ashoka University seems to have used the confidentiality clause to protect the interest of the defendant instead of the survivor.
The Disciplinary Committee found the defendant “guilty of misconduct according to all ethical norms of professional conduct and conduct at the workplace” however it only recommended that “legal advice should be taken by Ashoka University”.
During the course of all these procedures, the survivor received threats over the phone which pushed her to file an FIR. The defendant was listed as the only prime suspect based on the FIR.
Most unbelievably, the administration tells the survivor to be happy that “at least some action has been taken”.
We want the university to acknowledge its power in this dynamic. We strongly urge the CASH, the Disciplinary Committee (formed by the Board of Management) and the administration of Ashoka University to:
1. Take strict and punitive action against Mitul Baruah based on the service rules of the university. We believe that the findings of multiple reports lay down grounds for the same.
2. Provide full clarity on the handling of this case and on functioning of the due processes by answering all the questions raised in this open letter and Question 5 of the FAQ in writing.
3. Make reparations to the survivor for the systemic delays that inflicted further mental distress on to her and an unconditional apology to the survivor.
The survivor trusted Ashoka’s due process and proceeded to file a complaint with CASH. Time and again the university has failed to adequately inform the survivor over the progress of the investigation, which has only left the survivor hanging with anticipation and hope, inflicting further emotional distress. The survivor has also not been informed of the internal action taken by the university.
4. Ensure that any future complainants and defendants are provided access to counselling services (with a counselor of the survivor’s choosing) and incorporate the same in the latest CASH policy of Ashoka University.
5. Ensure that no other survivor that approaches CASH has to wait for over 9 months for an internal investigation to conclude. Moving forward, we urge the university to follow the highest standards when investigating cases of sexual harassment/misconduct and ensure that any investigation is indeed completed in 90 days and acted upon within 30 days of the report as mandated by the latest Ashoka CASH policy.
6. Try its best to expand its ambit on dealing with sexual harassment cases, by reflecting on its moral, ethical, and legal responsibility and understanding the true essence of Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act 2013, which is to provide for a safe atmosphere within the university, free from sexual harassment and abuse of power.
The above article was first published, here.
Here’s Ashoka University’s response to the above letter: “Ashoka has adjudicated this case with the highest standards of integrity, due process and fairness…We strongly advise that all material appearing in the public domain be treated with due caution, as a lot of it seems to be based on unsubstantiated speculation, or very selectively leaked materials. Ashoka is deeply committed to zero tolerance on sexual harassment.”
You can read the University’s official statement, here.