Public Inquiry against the JNU VC | Article of Charge 6: Undermining JNU’s Anti-Sexual Harassment Policy

The Vice-Chancellor has initiated and led the process of the attempted illegal dismantling of the GSCASH, JNU’s well-tested and universally acclaimed institutional mechanism for dealing with the problem of sexual harassment. He has sought to misuse a UGC Regulation to replace GSCASH it with “Internal Complaints Committee” over which he would be able to exercise control through his nominees, and thereby undermine the autonomy and accountability of the anti-sexual harassment body to the JNU community. Moreover, the Vice-Chancellor has had the premises of the GSCASH office locked, thus suspending ongoing inquiries, thereby creating conditions in which the human rights, confidentiality, health, physical and mental wellbeing, and security of complainants and witnesses can potentially be compromised. This action has also made exposed complainants and their witnesses to fresh intimidation by defendants who occupy positions of power, who now feel emboldened to defy restraining orders with impunity. In committing all these actions, the Vice-Chancellor has failed to fulfill the obligations of employers/persons in charge in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. At least the following clauses of the Act have been violated:

(2) The Internal Committees shall consist of the following members to be nominated by the employer, namely: —

(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;

(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

(5) Where the Presiding Officer or any Member of the Internal Committee, — (c) he has been found quilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or (d) has so abused his position as to render his continuance in office prejudicial to the public interest,

such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

16. Prohibition of publication or making known contents of complaint and inquiry proceedings.—Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings,

19. Duties of employer.— Every employer shall— (a) provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace.

The Gender Sensitization Committee Against Sexual Harassment (GSCASH) was constituted in 1999. The first set of Rules and Procedures of the GSCASH were approved in principle by the Executive Council of JNU (Resolution 6.7) on 28 September 2001. The Rules and Procedures of GSCASH, amended by the Mathur Committee, were ratified by the Executive Council on 2 June 2005. The new Rules and Procedures of GSCASH, revised by the Ghosh Committee, were ratified by the EC on 11 April 2007 (Resolution no. 6.14).

GSCASH was a body constituted through electoral representation by various constituents of the University – students, staff and faculty along with representation from unions and associations and wardens who constitute the Inter Hostel Administration (IHA). It also had external members – women academics outside the University and NGO representatives all of whom had to have demonstrated experience in work on issues related to sexual harassment.

This unique composition has built in checks against any attempt to influence enquiry processes by any person. It also made the GSCASH completely independent from senior levels of the administration, including the Vice Chancellor, the Rector (s), the Registrar, and other top level members of the University administration.

The GSCASH had three roles – 1. Gender sensitization 2. Crisis Management 3. Adjudication on Complaints.It is the second and third function for which the unique composition of GSCASH made it immune to any pressures from the University administration and other individuals in positions of authority.

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 in consultation with GSCASH and all other constituents of the University. These rules came into force on 18th September 2015 through a decision of the Executive Council (Resolution 5.1 dated 18.09.2015). (Annexure I: Notification of Resolution and GSCASH Rules and Regulations 2015).

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 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 may be noted that the university adopted these rules after due vetting and certification by its legal counsel that the new rules were compliant with the existing laws of the land. (Annexure II: Certification of Legal Compliance by the University’s Legal Counsel).

One annual report of the GSCASH is annexed to demonstrate that the GSCASH has functioned as per these new rules in 2015-16. (Annexure III: GSCASH Annual Report 2015-16).

Article 6.1: Direct Interference in a Complaint Case Against a Person in Position of Authority

The current Vice Chancellor assumed office in the last week of January 2016. The attacks on GSCASH started from February 2016 with multiple attempts of undue interference by top officials in the JNU administration in a complaint of sexual harassment on behalf of the defendant who holds a position of authority in JNU. GSCASH refused to succumb to these pressures. It is important to note that this resistance to blatant misuse of power despite total commitment to gender justice and principles of natural justice would have been difficult if rules and regulations of GSCASH were lax and had loopholes and if it had not had the unique composition that it had by way of constituency wise electoral representation (Annexure IV: Letter from the JNU administration instructing that the complaint be dropped).

On 8 April, 2016, the JNU administration set up a Committee consisting of three members to again review GSCASH rules even though this was unnecessary and arbitrary just a little over six months after the new rules had been notified after a comprehensive consultation exercise. This committee had a dialogue with GSCASH in which GSCASH had put forward its views on the arbitrary and unnecessary exercise. The Committee had submitted its recommendations which were certified by the University’s legal counsel on 25th May 2016 (Annexure V: Report of the Committee along with the Opinion of the legal Counsel).

The annexure shows that the legal counsel had certified that the existing process of constitution of the GSCASH through electoral representation was not in violation of the 2013 Act. The enclosures also show that the then GSCASH Chairperson had pointed out that GSCASH rules can be amended only in a special meeting of GSCASH as per the provisions of Rule X (4) of GSCASH. It is only after this exercise can any amendment to the rules be placed in the Executive Council.

It is important to note that the recommendations of this Committee and its deliberations were never presented to the Executive Council for discussion. That this exercise was unnecessary was confirmed given that the Court of the University under the present Vice Chancellor approved the existing GSCASH rules and regulations of 2015 in its original form in December 2016. (Annexure VI: Relevant Excerpt of the minutes of the meeting of the University Court)

This approval was done a few months after the UGC rules on prevention of sexual harassment was notified by MHRD (on 5 May 2016) and thus suggests that at least till December 2016, the JNU administration had no doubt about the GSCASH rules being in harmony with all regulations including that of the UGC.

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. These interferences in the case continued all through 2016 and 2017 in the 266th and 267th Executive Council meetings (Annexure VIIA, VIIB, VIIC and VIID: Relevant sections of EC minutes and related letters from the JNU Administration)

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 is important to note here 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.

Article 6.2: Illegal Dismantling of GSCASH and Installation of a Pliant ICC

In the meanwhile in 2017, the GSCASH had received more complaints of sexual harassment in which certain members of the JNU administration have been named. While the enquiries on these cases were on, the administration set up yet another committee consisting of 9 members headed by S C Garkoti on 4th August 2017 to ostensibly ‘review the existing mechanism of GSCASH and to give its recommendations among others for forming Internal Complaints Committee’. (Annexure VIII: Notification of the Constitution of the Garkoti 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, a former Chairperson of GSCASH 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 resigned from the committee after recording her views in writing). Her name was purged from the final report of the committee (Annexure IXA and IXB: Letters written by this member to the Garkoti Committee).

The legal counsel who was notified as a member of this committee was the same legal counsel who 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. The same legal counsel had also certified on 25 May 2016 that the composition of GSCASH through electoral representation as mandated in its rules were not in violation of the laws of the land. Her opinion on this matter had been consistent in all available communication from her office on this matter (Annexure XA and XB: Opinion of the University’s legal counsel on GSCASH Rules and Procedures in 2014 and 2016 respectively).

The Garkoti committee could not come up with any ‘review of the GSCASH mechanism’ which was the substantive part of its TOR from which its recommendations on ICC were supposed to follow. Instead, they took more than a month to copy paste the MHRD gazette notification for constituting a nominated ICC wasting precious university resources and taxpayer’s money. A sub-committee of this committee formulated the recommendations through a copy paste of the MHRD gazette notification of 2016 of UGC rules and suggested replacement of the GSCASH by a much smaller and non-representative ICC fully nominated by the Vice Chancellor.

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’.(Annexure XI: Copy of Registrar’s Circular dated 14.09.2017).

This so-called report was then listed as an ‘item to note’ rather than an ‘item for consideration’ in the agenda of the 269th Executive Council meeting – thus flouting even the earlier manipulated EC minute on it which had promised a discussion on GSCASH.(Annexure XII: Excerpt of the relevant portion of the agenda of the 269th Executive Council).

Dissenting members were not allowed to speak in the meeting. On expressing dissatisfaction for not being allowed to speak, one elected faculty member was censured. Six members of the Executive Council including all three elected Faculty representatives recorded their dissent in writing. (Annexure XIII: Relevant excerpts from the dissent notes)

Despite recorded dissent on the matter in writing and without due deliberation as is clear from the excerpts of the dissents in writing, the ICC was announced to have been constituted and replaced GSCASH barely minutes after the EC meeting got over on 18.09.2017.(Annexure XIV: Announcement of the ICC replacing GSCASH through office order dated 18.09.2017)

This was done even before the minutes of the EC meeting had been formulated and circulated and the minutes as on date do not reflect the strong dissent that have been put in by six members in the 269th meeting as well as earlier meetings. (Annexure XV: Excerpt from the unratified EC minutes of the 269th meeting in circulation as on date along with relevant extracts from the minutes of the 268th EC meeting)

Annexure XV read with Article 6.1 and 6.2 together clearly establishes that the decision to dismantle GSCASH and replace it with the ICC was solely based on wrongful deliberations by the VC and his administration to protect a powerful member of the JNU administration from on-going GSCASH proceedings in lieu of a complaint that GSCSH had received and taken up.

Article 6.3: Illegal Countermanding of Elections to GSCASH

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. (Annexure XVI: Copy of Registrar’s 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 stood 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 had no locus standi to countermand any election to GSCASH. We have seen in Annexure XV that the 268th EC decision was malafide and the minutes of the said meeting had not been confirmed on the date of the registrar’s letter. Thus the registrar not only had no locus standi on the matter, but was also was misrepresenting deliberations of the 268th EC meeting with presumably the approval of the ‘competent authority’ which in this case would be the Vice Chancellor.

It may also be noted that the GSCASH elections of the JNU Officers Association was allowed to be held in August 2017. If indeed this decision was made in the 268th EC in June 2017, then the GSCASH Elections of the JNU Officers Association which was held after June 2017 should also have received a similar notice. No such notice was issued. This directive came only when the GSCASH election of student representatives were announced.

This also leads the JNUTA to suggest that the hurried manner in which the ICC was constituted by calling an EC meeting on 18 September 2017 was also aimed at preventing the election of student representatives to GSCASH which had already been announced for 22nd September 2017.

Article 6.4: Illegal Attempt to Physically Capture the GSCASH Office and Case Files of Complaints

In the afternoon of the 18th of September, 2017 shortly after the Executive Council meeting held the same morning was over, the JNU Chief Security Officer (henceforth CSO) accompanied by numerous guards walked into the GSCASH office and handed an office order (248/2017 ,No AR/Acad/Misc/2017 dated September 18, 2017) to the Chairperson GSCASH, asking the present office bearers and staff to vacate the premises and hand over the keys to him. (See Annexure XIV: Copy of the relevant Office Order)

The Chairperson objected to this as the office order merely stated that the ICC had been constituted with the names of the nominees listed on it. It did not indicate that the office had to be sealed as the CSO claimed and the keys be handed over to him. It may be noted that the keys to the GSCASH office have always been in the possession of the GSCASH office staff /Chairperson or anyone authorized by her and they have never been in the possession of the security staff of JNU . Upon the illegality of their demand being pointed out to them, the security withdrew from the premises to the corridor , maintaining their intimidating presence at the door.

The GSCASH members present noted that amongst the members nominated to the new committee was one current member of GSCASH (who as per rules of GSCASH would have had to resign after giving due notice before taking up another position) and another nominated member was in fact also under investigation for breach of restraint in an ongoing case. Therefore it was felt that this notification was legally fraught and required clarification from the “competent” authority before any further step could be taken. This was then communicated to the JNU administration vide a letter sent the same afternoon.

In the meanwhile, an office order (No.Acad/Misc./2017 dated September 18th 2017 requesting “to hand over charge to the chairperson ICC . The time and date will be informed by Prof Vibha Tandon , Chairperson ICC in due course “ was delivered to the GSCASH office from the good offices of the Registrar Mr Pramod Kumar, who once again had no locus standi on the matter. (Annexure XVII: Copy of the Relevant Letter)

As the entire modality of the ICC notification appeared mendacious, the GSCASH office staff was then instructed by the Chairperson to request other members of GSCASH and Chief Enquiry Officers of ongoing enquiries, as well as representatives of various constituent members of GSCASH to come to the GSCASH office at the earliest. Shortly thereafter, nominated members of the newly formed ICC also walked into the office without prior communication, demanding that the office and files be handed over to them. The Chairperson GSCASH explained the legally fraught implications of their position to them, and in the absence of any written communication from the newly designated “ICC Chairperson” who had also come, it was conveyed to the “ICC” members who had arrived with such alacrity, that GSCASH members were bound to safeguard the confidentiality of ongoing case files and other material regarding the same and that the legality of the constitution of ICC itself was questionable which could not be shared due to reasons of confidentiality . The JNUSU president, present there, also sought to safeguard the files of ongoing cases and ensure confidentiality of cases as several ongoing investigations were in fact against people in positions of power whose interests were being clearly being served through the dismantling of GSCASH.

The haste with which such an important decision was illegally being imposed of GSCASH was intimidating to say the least and this was conveyed to all members of GSCASH vide emails and their presence was sought by the Chairperson the next day at the GSCASH premises as there was also an apprehension of an illegal locking of the GSCASH offices by the JNU security which was hovering near the door .

Thereafter, in the presence of several JNU security staff members the premises of GSCASH were locked and the keys were held in the safe custody of the Chairperson GSCASH as was routine, awaiting further instructions from the “competent authority” as no written communiqué had been received regarding modalities of transfer, if at all legal.

On the 19th of September 2017 when the office staff arrived for work in the morning, they found the GSCASH office ingress had been blocked with a second lock over the GSCASH office lock and the Chairperson GSCASH was informed about the same. The Chairperson arrived at 9:30 to look into the matter and was told by the security staff standing in the corridor that the additional lock had been put at the behest of the Vice Chancellor JNU. This was further confirmed when the Chairperson sought an explanation from the Chief Security Officer shortly thereafter, who informed her that while he had received no written order to do so, he had the GSCASH offices locked and sealed on the basis of a Whatsapp message received from the Vice Chancellor around 7pm in the evening of the 18th of September 2017. It is through this utter disregard of legalities and procedures that a situation was created wherein the ingress and egress to the GSCASH premises was made inaccessible.

Awaiting further communication, the Chairperson waited all day to hear from the “Competent Authority” . Around 4pm a threatening communication arrived by hand, from the office of the Registrar Mr. Pramod Kumar seeking that the Chairperson make herself available at the GSCASH office to hand over charge to an unnamed “Presiding Officer of the ICC.” This ambiguous communication from someone with no authority regarding ICC-GSCASH matters was deeply suspicious and therefore the matter was reported by her orally to the JNUTA which discussed the matter in its extended JNUTA EC meeting held on the 19.09.2017. The complications arising from this imbroglio was also conveyed to the Vice Chancellor the same evening vide an email by the Chairperson GSCASH.

It may also be observed that as the entire exercise of notifying an ICC had happened without even a single line of communication with GSCASH because of which it was carrying out its normal functions on the 18th of September, 2017. So complainants, witnesses, enquiry officers of ongoing cases etc were present in the GSCASH office when this threatening matter to take over the GSCASH office and its confidential case files transpired. This resulted in the intimidation of not just the office bearers of GSCASH but also complainants who were brought face to face with defendants, thus comprising their health and safety in the most unseemly manner.

Related Arguments in support of Article 6 of the JNUTA Chargesheet Against the Vice CHancellor

The UGC regulations of 2015 notified by MHRD in 2016 on this matter actually 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 elected 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? Why is it so keen to scuttle ongoing enquiries and confiscate all papers and documents related to complaints?

From our findings and evidence 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. It is also 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 enquiries against their own.

Thus the Vice Chancellor is charged of partiality and interference in GSCASH procedures, undermining of rules and procedures in cases of complaint of sexual harassment, illegally dismantling the GSCASH in JNU and installing a pliant and puppet ICC, attempting to access and confiscate confidential case documents of GSCASH through abuse of authority, and compromising the health and safety of complainants. Thus he has not only undermined JNU’s anti-sexual harassment policy, but has also made the campus unsafe for all constituents of JNU.

Please note that the identities of all parties to GSCASH complaints have been redacted and confidentiality has not been compromised in documents submitted to the jury.

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