Those who demand ‘due process’ must first live by ‘due process’

The MeToo movement has been criticised as having sacrificed “due process” and thereby damaged the reputation of the men who are being called out. But what is “due process”? It is often said that procedure is an aid to justice. Justice is about substantive issues, procedure is the road to get there. Hence, justice is outside the framework of procedure.

Justice for women means the right to work, expecting their employers to understand and prevent sexual harassment at the workplace, zero tolerance of sexual harassment by employers, providing a mechanism to raise complaints when it happens. When employers fail in their duty to prevent sexual harassment, or even to recognise its existence under their nose, where is the question of “due process”?

Before demanding due process, you must give justice through due process to a victim of sexual harassment. None of the women who have spoken out had access to due process. Their right to work free from sexual harassment was violated. There were no declared policies against sexual harassment at the workplace, or grievance settlement procedures in place, no contract in place with editors putting them to notice that sexual harassment would invite sanctions by the employer.

To put it bluntly, employers were complicit in sexual harassment at the workplace. Often the line between editor and owner was diffused by ownership patterns in which editors found a financial stake. Not only was the substantive right to equality at the workplace denied to women but due process of making a complaint was also denied.

In such a situation, where is the question of demanding “due process” from women? Speaking out being the only option is “due process” regardless of how long after the offensive incident. The women who have spoken out have performed what Dr. Christine Ford, deposing at the [US Supreme Court Justice Brett] Kavanaugh hearing called a “civic duty”.

“Due process” only works when the coordinate substantive provisions also work. After all, due process is in aid of substantive provisions for women and is not a standalone gift to an abuser. The critical assumption for the success of due process is that the duties imposed by the substantive provisions and those whom the duty is cast upon voluntarily respect the rights enshrined in law. The law comes in when those on whom the duties are imposed do not honour the duties and hopefully that should be an exception to the rule. Sanctions are then invited.

Once the critical link between the substantive law and due process is broken, “due process” becomes a tool to manipulate the system, as in the filing of a defamation suit by former Minister of State for External Affairs M. J. Akbar. Further, when a public person abuses his position, to speak up is not only due process but also a public duty.

When denial of substantive rights and abuse of process becomes a pattern, then it is time to recalibrate the law.

Should employers not be sanctioned for failure to prevent sexual harassment, should they not be made to pay substantial damages for trauma and loss of employment, is the law of defamation not being used for a tangential purpose of covering up crimes committed against women and hence an abuse of process and a tool of oppression, are gag orders not a gross violation of the right to free speech and denial of access of justice ?

Our speaking out is what makes law and what gets it implemented. We are not here dealing with isolated instances of misuse of position by men in power, we are dealing with a pattern of abuse.

For centuries we have been told women “misuse” the law, as when we are told women misuse Section 498A of the IPC, women misuse the domestic violence law, women misuse the rape law.

Now we are telling sexual harassers, they ignore the law as if it does not exist, they violate the rights of women to work in a workplace free from sexual harassment, and then having done that they misuse the law, misuse due process when they file criminal cases for defamation , when they seek gag orders against speaking the truth.

It is time to make course corrections and understand what is the true meaning of the use and abuse of due process It is no longer an isolated misuse by men in power to the judicial process in aid of sexual harassment, it has becomes a pattern.

(The writer is a Supreme Court advocate)

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Printable version | Jan 16, 2021 3:31:20 AM |

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