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On Thursday, 27 May, the Goa Bench of the Bombay High Court directed the District & Sessions Judge who gave judgment in the Tarun Tejpal sexual assault case to redact the references to the survivor’s identity while uploading the order on the website.
The order has come in an appeal filed by the state against the acquittal of Tehelka’s ex-editor Tarun Tejpal on all charges by a District & Sessions Judge in Goa’s Mapusa court. Tejpal was accused of forcing himself on the prosecutrix, against her wishes, inside the elevator of Goa’s Grand Hyatt hotel during the THINK 13 festival.
Section 228A of the Indian Penal Code makes disclosure of the identity of victims of certain offences punishable. Any person who publishes or prints the name or any matter which may make known the identity of any person against whom an offence of rape is alleged or found to have been committed can be punished.
While section 228A doesn’t explicitly extend to judicial officers, the Supreme Court in Bhupinder Sharma vs State Of Himachal Pradesh held that even the judges should refrain from revealing the identity of a rape survivor.
Kerala High Court, in the case of Anju Varghese vs the State of Kerala, explained the rationale behind having such a restriction. The court reiterated that the provision was specifically intended to ensure that the survivor is not exposed to further agony by the consequent social victimisation or ostracism pursuant to disclosure of their identity.
Therefore, it is a settled position of law, that the judicial officers are not supposed to reveal the identity of the survivor even in judicial orders. The upholding of this principle time and again in various judgments shows how Special Judge Kshama Joshi was either grossly negligent or was controlled by her own biases while writing the judgment in the Tarun Tejpal case.
On 18 March 2021, the Supreme Court of India passed a 24-page-long judgment on the ‘dos and don’ts’ for judges while handling cases of sexual crimes against women. In an attempt to remedy the ‘patriarchal mindset’ and ‘misogynistic attitudes’ in the judiciary, the court has held that the “use of reasoning/language that tends to trivialise the survivor, is to be avoided under all circumstances”.
While declaring that the ‘boys will be boys’ attitude has no place in the judicial reasoning, the court said:
In order to understand why such judicial orders are passed in the first place, the court turned to the concept of ‘judicial stereotyping’. Simone Cusack, an Australian lawyer, defined judicial stereotyping as a practice of judges ascribing to an individual specific attribute, characteristics or roles by reason only of her or his membership in a particular social group (eg women).
The court recognised that due to their incapability of challenging harmful stereotypes, judges can often perpetuate such prejudices in legal proceedings.
Therefore, the court highlighted, imposing conditions such as community service that implicitly diminish the harm caused to the survivor, holds the potential of subjecting such survivors to “second victimisation”.
While acquitting Tarun Tejpal, the trial court held that the "woman's behaviour" was a key factor in "undermining her case".
According to the court, it was "unnatural" that a woman will "message her location" in the hotel. The incident allegedly occurred in the hotel elevator on 7 and 8 November 2013.
Justice Joshi added that the woman admitted that two SMSes were sent from her phone and that those were not sent as "response to any message”.
The Goa government moved the Bombay High Court on 25 May. “This is injustice meted out to a woman. In Goa, we will not accept this… With the kind of evidence and documents we had in the case, it could not have led to an acquittal. This is very sad,” Goa Chief Minister Pramod Sawant said.
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