NLU Orissa student alleges sexual harassment by NLSIU Bengaluru student
In this post, we determine the applicability of relevant anti sexual harassment at workplace laws to real life incidents reported in the media. Based on our analysis, we find that the instant case by the NLU-O student against the NLSIU student would fall outside the purview of ‘workplace’ under the relevant laws. We also outline some possible strategies for legal recourse.
A. Sexual harassment allegations made by NLU-O student:
Recently, Bar and Bench reported that a third year female law student at National Law University, Odisha (NLU-O) had posted a series of tweets alleging that she was sexually harassed by a fourth year male law student at National Law School of India University (NLSIU).
The female student, in her tweets, revealed that she met her harasser through a mutual friend in 2019. From the woman’s narrative, it appears that the relationship was initially consensual. She alleges that subsequently the man threatened to physically harm her and forcefully had sexual intercourse with her.
As per the victim’s account, she also underwent an abortion in November 2021 during which the alleged perpetrator was “completely absent from the situation”. The victim alleges that she started distancing herself from the man in January 2022, following which she experienced physical and mental abuse at the hands of the perpetrator; for instance, the man would forcefully have sex with the victim at her house even though the doctors advised the victim against engaging in sexual intercourse.
In his response to Bar and Bench, the man has denied all the allegations made by the victim, and clarified he was with the victim “throughout all medical procedures, physically, emotionally and financially” (referring to the abortion which the victim underwent in 2021).
The case is now before NLSIU’s Sexual Harassment Redressal Committee, which is presently investigating. Further details about the incident are not forthcoming as the matter is currently sub-judice.
B. Applicability of sexual harassment at workplace laws to educational institutes:
Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter ‘PoSH Act’), government agencies including the University Grants Commission (UGC) have the power to make relevant rules.
On 2nd May, 2016 the UGC notified the UGC (Prevention, prohibition and redressal of sexual harassment of women employees and students in higher educational institutions) Regulations, 2015 (hereinafter ‘UGC Regulations, 2015’). The UGC Regulations, 2015 apply to all higher educational institutions (HEIs) in India.
The UGC Regulations 2015 place obligation upon HEIs to ‘publicly commit itself to a zero tolerance policy towards sexual harassment’. Under the UGC Regulations, 2015 every HEI must constitute an Internal Complaints Committee (ICC) to inquire into complaints of sexual harassment, which shall include three students (if the matter involves students).
Interestingly, the regulations cover third party harassment, i.e., the harassment of a student or employee of the HEI by a third person (who is not a student or employee of the HEI). Further, the UGC Regulations, 2015 (clause 3(1)(k)) also recognise the need to curb intimate partner violence.
In addition to the UGC, the All India Council for Technical Education (AICTE) promulgated the AICTE (Gender Sensitization, Prevention and Prohibition of Sexual Harassment of Women Employees and Students and Redressal of Grievances in Technical Educational Institutions) Regulations, 2016 (hereinafter ‘AICTE Regulations, 2016’). The AICTE Regulations, 2016 apply to all technical institutes in India and contain provisions similar to the UGC Regulations, 2015.
NLSIU has enacted the ‘Code to Combat Sexual Harassment’ ‘Code to Combat Sexual Harassment (2019)’ (hereinafter ‘NLSIU’s 2019 Code’) which brings the university’s Principles of Conduct (2002) in line with PoSH Act.
C. Is NLSIU’s ICC competent to inquire into the present allegations?
An important legal issue that arises is whether the allegations made by the complainant (in this case, the NLU-O student) would be covered by NLSIU’s 2019 Code and more broadly, the PoSH Act and the UGC Regulations, 2015.
NLSIU’s 2019 Code applies to all instances of sexual harassment as specified below:
i) Occurring on the NLSIU campus
ii) Between or among members of the NLSIU community, irrespective of their location
iii) Where the complaint is made by a third party against a member of the NLSIU community where such member is involved in an activity pertaining to NLSIU, irrespective of their location.
The complaint filed by the NLU-O student before NLSIU’s ICC is a scenario wherein a third party (namely, the NLU-O student) has been allegedly sexually harassed by a member of the NLSIU community (in this case, the NLSIU student). For sexual harassment of a ‘third party’ to be covered under NLSIU’s 2019 Code, the sexual harassment complained of must occur when the respondent (person against whom the complaint is filed) is involved in an activity pertaining to NLSIU. Let us understand this with the following example.
Say, ‘X’, a student of another university was attending a conference or college fest at NLSIU. During the visit, X was sexually harassed by ‘Y’, one of the event organisers at NLSIU. This incident would squarely fall under the workplace sexual harassment laws because the sexual harassment complained of occurred when the NLSIU student was involved in an activity pertaining to NLSIU. Contrast this with a scenario wherein X is a student of another university and Y is an NLSIU student, and X and Y meet at a wedding. Subsequently, X faces sexual harassment by Y, and files a complaint before NLSIU’s ICC. This latter scenario would not be covered under NLSIU’s 2019 Code as Y was not involved in an activity pertaining to NLSIU when the sexual harassment occurred.
In all the allegations made by the NLU-O student, the sexual harassment does not appear to have taken place in connection with an activity pertaining to NLSIU. As per the facts laid out by the complainant, both the students met through a mutual friend and were initially in a consensual relationship, following which the relationship turned sour and abusive. The incidents too occurred outside campus. Therefore, it is likely that NLSIU’s ICC may not be empowered to inquire into the sexual harassment allegations made by the NLU-O student.
D. What happens next?
If the ICC decides against inquiring into the case on grounds that the incident is not covered under NLSIU’s 2019 Code, the complainant can still file a criminal complaint under the relevant provisions of the Indian Penal Code (IPC), including section 375 (offence of rape). The option to pursue a criminal complaint is open to all sexual harassment victims, including those whose cases are being/have been decided by an ICC. In such cases, the ICC shall provide assistance to the victim to file a criminal complaint.
In case the Sexual Harassment Inquiry Committee (SHIC) (the ICC at NLSIU) decides that the sexual harassment allegations are covered by NLSIU’s Code to Combat Sexual Harassment (2019), the SHIC will inquire into the allegations as per the procedure laid out in NLSIU’s 2019 Code. The entire inquiry process is required under law to be completed within 3 months. During this time, the complainant may choose to withdraw her complaint with the permission of the Sexual Harassment Policy Advisor. During the inquiry process, the SHIC may restrain either party from contacting each other.
It is also important to note that NLSIU’s 2019 Code explicitly states that the past sexual history of the parties shall not be taken into account by the SHIC when deciding on the incidents of sexual harassment complained of. This is important in the context of the present case as the relationship between the complainant and the respondent was initially consensual. However, the SHIC is bound to disregard this when ruling on the incidents of sexual harassment (forceful intercourse) which later occurred.
Another important aspect of the inquiry process is that all the parties involved in the inquiry process (including respondent, complainant, witnesses and the SHIC members) are duty-bound to maintain confidentiality and not to divulge information such as the name of the respondent. In this case, the NLU-O student had narrated the incidents through a series of tweets naming the perpetrator in a #MeToo style confession. This may result in corrective action being taken against the complainant for breach of confidentiality.
If the NLSIU student is found to have sexually harassed the complainant, he faces disciplinary action leading up to rustication and expulsion (also mandated under the UGC Regulations, 2015).
For those interested in learning more about the measures to prevent sexual harassment of women on educational campuses, please refer to ‘SAKSHAM’, UGC’s Handbook on this topic.
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