After public outrage forced the Goa Police to initiate a probe (the BJP government ‘went into overdrive’ according to Tejpal’s friend Vrinda Grover, lawyer) there have been crude attempts to get the accused off the hook. A member of his immediate family barged into the home of the victim’s mother on November 22 and tried to intimidate her to accept a deal and reveal their legal strategy.

On November 25, the victim resigned, citing disappointment with the organisation. By then, journalists were quitting in disgust; main financier KD Singh announced he was going to pull out. Tehelka lost its aura the minute news of the episode leaked; that the Tejpal-Chaudhary duo believed they could brazen it out is a blistering indictment of their socio-political circuit.

To digress briefly, it has come to light that the money-spinning THiNK Fest where the alleged assault took place, originally launched by Tehelka publisher Anant Media Pvt Ltd, was quietly taken over by Thinkworks Pvt Ltd, wholly owned by Tarun Tejpal, his sister Neena Tejpal, and managing editor Shoma Chaudhary. Yet THiNK Fest sponsors believed it was organised by Tehelka, a loss making enterprise where staff salaries were frequently delayed, and Tehelka staff were used to man the show; the victim’s assignment at Goa was to chaperone the De Niro family. The staff seemed unaware that they were drafted to work unduly long hours for a different entity, without pay or overtime (travel and lodging are not remuneration). If so, an investigation into the work culture at Tehelka is in order.

In a moral indictment of Chaudhary, the victim asserts that though she received a private unconditional apology from the accused, her demand for a public apology (within Tehelka) was dismissed and the matter belittled as ‘an untoward incident’; the Vishaka guidelines were disobeyed. Worse, Chaudhary claimed on television that the victim was “satisfied” with her actions; when matters escalated Tejpal and Chaudhary began chanting “another version” of events amounting to “intimidation, character assassination and slander”.

Precisely such episodes in a rural setting (always worse) led some social activists and NGOs to move a class action before the Supreme Court in 1997, to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. Vishaka & Ors vs State of Rajasthan & Ors was triggered by the alleged brutal gang rape of a social worker in a Rajasthan village; it sought safeguards by an alternative mechanism in the absence of legislative measures, to meet a felt and urgent social need.

A bench comprising Chief Justice of India JS Verma, Justice Sujata V Manohar and Justice BN Kirpal concluded that sexual harassment also violated Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business’, as this mandates availability of a “safe” working environment. Ideally, the duty to ensure such safety and dignity through suitable legislation and a mechanism for enforcement lies with the legislature and executive. But when instances of sexual harassment violating fundamental rights of women workers come for redressal to the Supreme Court, they attract remedy under Article 32 under which the Court can lay down guidelines for protection of these rights to fill a legislative vacuum.

Accordingly, in cooperation with members of the Bar, the Court framed guidelines to which the Union of India consented, to govern the behaviour of employers and all others at work places. The judges relied on International Conventions and norms, especially the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region, which were accepted by Chief Justices of Asia and the Pacific in 1995 as representing the minimum standards necessary to be observed to maintain the independence and effective functioning of the judiciary. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was also considered as the Government of India had ratified its Resolution in June 1993. Indeed, it was here that India committed to establish a Commission for Women’s Rights to act as a public defender of women’s human rights.

The guidelines are equal to law declared by the Court under Article 141. The Court defined sexual harassment to cover all manner of unwelcome sexually determined behaviour, and included employment to cover all work involving drawing a salary, honorarium or voluntary, in government, public or private enterprise. It specifically covered occasions “when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment”.

The Court explicitly directed the employer, in cases of a specific offence under the Indian Penal Code or under any other law, to complain to the appropriate authority and ensure that victims or witnesses are not victimized or discriminated against. Each organisation was to set up a complaint redressal mechanism and ensure time-bound treatment of complaints. This did not happen at Tehelka, a point made by the victim when she escalated her counterattack after a vilification campaign was launched against her.

Tejpal’s friends regularly surfaced on television channels peddling a puissant defence after a perfunctory ‘he must be punished if he has done anything wrong’, even as the accused evaded the law until finally arrested on the night of November 30. It bears mention that no television channel invited the colleagues to whom the victim made instantaneous complaints after both incidents, to offer that side of the story.

It took 16 years and nationwide anger over the Delhi gang-rape of December 2012 for the Vishaka guidelines to be translated into law, viz., the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. And now, because a member of the socio-political stratosphere is caught in its snare, the clamour to tone down its ‘draconian’ provisions has already begun.

Pioneer, 3 December 2013