June 13, 2021

Tarun Tejpal Judgment Disturbing, Legally Unsound

THE judgment by a trial court in Goa acquitting Tarun Tejpal in a sexual assault is shocking and “deeply disturbing”, a statement issued by over 300 women’s groups and individuals said.
The statement said the judgment will prove to be a “hindrance to women filing and fighting rape cases”.

“The judgement showcases the kind of gruelling trial that a survivor of sexual assault has to face in an insensitive court atmosphere and the relentless, cruel and often scandalous, illegal and irrelevant cross examination that a prosecutrix also faces,” the statement said.

The statement said the judgement of the Additional Sessions Judge, Mapusa, is “legally unsound and replete with biases and conceptions of victimhood and womanhood that are not just outdated, but wholly irrelevant to the adjudication of sexual offences as per settled law.”

“It appears as though the survivor herself has been put on trial, as opposed to the accused,” it said.

The case concerns a junior employee of Tehelka who accused the then editor in chief, Tarun Tejpal of sexual assault and molestation on two occasions on November 7 and 8, 2013 during a work assignment, at the literary ‘Think’ festival in Goa.

The statement said the allegations fall categorically within the definition of rape as per law and demonstrate the exploitation of a relationship of trust, and also misuse of power by the accused, who was the employer of the prosecutrix.

Accordingly, an FIR for rape by a person in position in trust or authority, and by a person who was in a position of control and dominance vis-a-vis the survivor apart from other sections of the IPC including molestation was registered by the police.

The statement highlighted one of the first biases that the court displayed was by noting that she had contacted various lawyers and others including Senior Advocates of repute, as well as an officer with the National Commission for Women, after the incident.

The ASJ concluded that “there may be a possibility of doctoring of evidence or adding of incidents and …the deposition of the prosecutrix has to be scrutinized in that angle”.

“Under law, the victim of any crime has an independent and inalienable right to consult counsel, and would further naturally turn to lawyers known to them for assistance. In this circumstance, a negative inference by the judge relates to this is completely unwarranted”.

It is also mentioned in the statement that the prosecution seized the mobile phone of the survivor and all her private conversations, even ones irrelevant to the incident came to light during the trial.

In stark contradiction to this, no such wide evidence of the accused and his interactions were placed on record at all. Regrettably, it is through an order of the Supreme Court that a complete clone of the prosecutrix’ phone was provided to the accused, allowing a complete breach of privacy and exploitation of her personal life during cross-examination.

The statement said despite the legislative change, progressive judgments from the courts, and strides in so far as women’s rights is concerned, the Tejpal judgment “reveals a continuing and pervasive obsession with scrutinising a rape victim’s behaviour to analyse whether it is ‘normative’.”

The statement said that the ‘normative' here was defined by the author of the judgment and is based on gender stereotypes and social conditioning.

“The law must rise above such value judgments and adjudications must be based on an unbiased appreciation of evidence, which the Tejpal judgment appears to lack.

It also highlighted that even the prosecutrix’ intelligence, capability and fortitude have been held against her and her casual manner of speaking with friends, irrelevant to the incident at hand, has been adverted to.

Immediately after the incident, the survivor informed her close friends of the incident and continued with her work assignment for a few days, statedly unsure of the appropriate steps to be taken. At that time, the prosecutrix had written to the CEO of Tehelka detailing the incident.

The survivor also had received both an informal and formal apology in writing from the accused.

The personal apology stated: “I am sorry at the immense distress that has been caused to you by my lapse of judgement but I want you to know its been totally devastating for me too in every possible way… this is for me to figure out how it went so terribly misunderstood and wrong” and also stated that his daughter had spoken with him, and said that he was not aware that it had been non-consensual till then. In the formal apology too he admitted “to attempt” her on “two occasions” and to violating “propriety”.

The statement stressed that these ‘apologies’ acknowledge the incident and distress caused to the survivor, and corroborate her claim of speaking with the daughter of the accused.

“We feel it is appalling that this evidence was brushed aside on the weak assertion that it is irrelevant considering Section 24 of the Indian Evidence Act [IEA], since the accused was apparently asked by the Tehelka CEO and by his own sister to tender it. This does not in any way constitute an induced confession under Section 24 IEA, given that the section requires that the inducement or threat emanate from ‘a person in authority’.”

In another detail that shows the bias of the judge, during the hearings, prosecution witnesses were held unreliable due to their proximity with the prosecutrix. However, the court found the testimony of the co-worker and sister of the accused reliable in this regard. The prosecutrix’ mother meanwhile was not believed as she was said to be an interested witness and the prosecutrix didn’t tell her about the incident for two days. Even her mother’s conduct of not taking leave from work to support the woman has been held against her, as though this evidences the lack of any trauma.

“Another message sent by the accused, seemingly referring to digital rape, was also disregarded by the ASJ. In our opinion, this displays an unreasonable latitude to any acts by the accused, whilst placing every interaction and act of the prosecutrix (including smiling in photos taken at the festival) under scrutiny. It would seem that, being visibly traumatized would be the only acceptable and normative behaviour for a rape survivor and the judge held that the prosecutrix failed to demonstrate any kind of normative behaviour…that as a prosecutrix of sexual assault might show.”

The statement added that while the appellate court will take a view on the basis of the evidence, the inconsistencies which were evident in the judgement are natural given the traumatic nature of the incident and the protracted trial of seven years.

While being questioned during trials, the rape survivor was asked shocking questions like why prosecutrix had not averted her face, or put her hand in front of her mouth while the accused was kissing her.

“It is a pity that we still have to state that women react in different ways to assault and violence, that there is no mould within which a victim’s reaction prior, during and following an incident can be made to fit.”

The prosecutrix was also repeatedly asked about which buttons were pressed by the accused to stop the lift. The statement said such details may not be noted by the prosecutrix, particularly during a short, traumatic incident. The court made no concessions for shock and trauma of the prosecutrix, nor did the court give adequate weight to the testimony of the prosecutrix as per settled law.

The court held that the ‘victim’s’ testimony is not of sterling quality though the prosecutrix had nothing to gain from this nor was any motive ascribed to her for her so-called lack of credibility.

This is even as the Supreme Court and High Courts have repeatedly held that minor discrepancies and variations in testimony of witnesses, as long as they do not shake the core of the prosecution case, are bound to occur and the testimony cannot be discarded on this basis.

The Supreme Court in Gurmit Singh’s case had directed courts to not look at a rape victim’s testimony with “glasses tinged with disbelief” as she was an injured party, and generally the testimony of an injured party is of high evidentiary value.

In this case the court excluded evidence on record pointing to the guilt of the accused and instead believed the version of the accused that he and the prosecutrix had only indulged in ‘drunken banter’.

The statement added this judgment harks back to a method of dealing with rape cases that has been held incorrect as per law in India. Supreme Court judgments say cross-examination should not be a means to harass and cause humiliation to the prosecutrix.

The judgment of is further reminiscent of earlier judgments like in Mathura’s case, in which signs of hurt and injury were considered crucial to prove rape.

The judgement also reveals all the personal details of the survivor including her name, her partner’s name, email address etc., even though this is against the express provision of the law. The High Court in appeal has already asked the trial court to remove all these references.

“It is judgments like these that continue to deter women from making timely complaints of sexual assault and rape and increase barriers to accessing justice. As such, the very reasoning of the Judge is contrary to public interest and a set-back to hard-won women’s rights.”

Evidence regarding the character of a rape survivor or of her previous sexual history, “immoral character” has specifically been excluded in 2013, when consent is in issue and [Section 146(3) IEA].

“Conventional and patriarchal notions about what constitutes a chaste or good woman have also been frowned upon by the Supreme Court and primacy placed on the dignity, privacy and bodily integrity of a woman. The judgement of the Sessions Court, Mapusa, Goa, throws up issues not just of gender sensitisation, but also of a failure to follow precedent and prevailing law in letter and spirit.”

The signatories to the statement included AIDWA president, Malini Bhattacharya, general secretary Mariam Dhawale,Mohini Giri, Jyotsna Chatterjee of JWP, Kavita Krishnan of AIPWA, Chhabi Mohanty of AIMSS, Ranjana Padhi of Women against Sexual Violence and State Repression (WSS), Sandhya Gokhale of Forum Against Oppression of Women, Shabnam Hashmi from Anhad and over 300 others.