(Trigger warning: Descriptions of rape/sexual assault as reflected in the judicial record. This article was first published on 29 May. It has been republished from The Quint’s archives in light of the Bombay HC’s hearing of the Goa government’s appeal against the acquittal.)
Earlier this week, a Goa Sessions Court acquitted former Tehelka Editor-in-Chief Tarun Tejpal of all charges relating to his alleged rape of his junior colleague (the prosecutrix) in 2013.
The judgment adopts deeply flawed lines of reasoning that exemplify the system’s failures to protect sexual assault survivors, particularly when faced with power imbalances.
In November 2013, the complainant and the accused were at the Tehelka-organised THiNK fest in a Goa hotel. Tejpal, in his then capacity of the magazine’s editor-in-chief, exercised supervisory control over the complainant.
The former editor was accused of two separate instances of taking her to the lift on the pretext of attending to a guest, and sexually assaulting her in the lift. According to the complainant, on 7 November 2013, Tejpal kissed her against her will, pulled down her underwear and raped her by penetrating her with his fingers and tongue; On 8 November 2013, he again forcibly kissed her, lifted her dress and touched her buttocks.
Tejpal was charged with wrongful restraint and confinement (Sections 341 and 342); sexual harassment (Section 354A); assault/criminal force to a woman to outrage her modesty (Section 354); and aggravated rape on account of being in a position of trust/authority and control/dominance towards the woman (Sections 376(2)(f) and 376(2)(k), IPC).
He did not deny that there had been a sexual encounter, but claimed in an infamous ‘apology’ email, that he had no idea that incident “had been even remotely non-consensual.”
‘Picking Up’ Or ‘Pulling Up’ Underwear – Does It Really Matter?
As with most cases of sexual assault, there were no eyewitnesses or video footage of the assault itself.
The complainant’s testimony was the most crucial and the judgment acknowledges that this may be enough to return a conviction if it is of ‘sterling quality.’
The judgment proceeds, however, to discard the testimony and acquit the accused of all charges – focusing on discrepancies that are ultimately immaterial to the alleged assault.
For instance, in her initial statements to the police and the Magistrate, the complainant describes herself as ‘pulling up’ her underwear which had fallen to her ankles and attempting to exit the lift, whereas in a complaint to a senior at the workplace, she refers to ‘picking up’ her underwear.
One of the more significant omissions is that immediately after the first incident, when she informed her colleagues of the sexual assault, she did not mention penetration.
Even if this discrepancy were to be accepted as material, the judgment does not justify why it acquitted Tejpal even of sexual harassment.
Moreover, in discussing such discrepancies, the judgment does not merely reach a conclusion that the evidence against Tejpal is insufficient but instead concludes that the complainant is deliberately lying.
In doing so, the judgment almost appears to hold a trial against the complainant, albeit without extending any of the benefit of doubt accorded to the accused.
'How Could She Be Shocked Or Shared If She Pushed Him Away?’
To support these generalisations, the judgment reinforces deeply patriarchal norms of how a model survivor is supposed to behave, often reaching farcical conclusions.
For instance, when dealing with the accusation that Tejpal pushed the complainant to the wall of the lift and then forcibly kissed her, the judgment questions how it would have been possible for Tejpal to pry her mouth open and insert his tongue – if prior to the assault, she hadn’t been facing or conversing with him.
The verdict also questions why she hadn’t held her jaw firmly closed.
The order holds it extremely implausible that a ‘legally aware, intelligent, alert and physically fit’ woman did not push Tejpal away before he forcibly kissed her, given her claims that she pushed him away after.
In another place, the judgment disbelieves her statement that she was ‘shocked and scared’ of the accused because she had stated she was pushing him away.
The Judgment on Tejpal’s ‘Apology’
The judgment holds that in his ‘apology’ email, Tejpal could not have been referring to the incident in the lift. It stated that the complainant pushing Tejpal would have made him aware that she was upset, but in the email, the former editor wrote that he ‘did not know that she was upset.’
Instead, the judgment concludes that his ‘apology’ must have been referring to “drunken banter” outside the lift. Perversely, the judgment holds that the complainant accepted “the defence of drunken banter” because she claimed that Tejpal used to routinely make ‘sexually coloured remarks.’
She had responded to Tejpal’s email refuting that they had been talking about sex or desire prior to entering the lift, and stated that it was Tejpal who usually chose to speak with her about sex or desire instead of her work.
It is worth stating that the possibility of incarceration does and should require the highest standards of proof and due process. The judgment correctly refers to the right to fair investigation under Article 21 and notes failures in the investigation, such as the failure to seize CCTV footage from all floors.
However, the import of these failures is amplified by disregarding supporting testimonies.
Who Is An Ideal ‘Victim’ Anyway?
The judgment discards several questions put to the complainant in cross-examination, on the grounds that under the new Evidence Act amendments, her prior character is irrelevant.
Despite this legal nod, however, it’s clear that the complainant’s behaviour – frequently talking to her friends and acquaintances about sex, for instance – influences the judgment in concluding that she had a flirtatious conversation with the accused that night.
Similarly, the complainant’s sexual conduct with other persons during the conference is cited to conclude that she did not behave like a survivor.
The court’s assessment of ‘model victimhood’ produces some of the more troubling inferences. Photos of the complainant with alcohol, her presence at parties and her conversations regarding sex are all relied on to draw conclusions regarding ‘non-normative’ victimhood, indirectly introducing assessments of the character of the complainant.
As lawyers, it is also important to consider that there are issues inherent to the criminal justice system that are not resolved by calls for reform – as a system that centres incarceration over reparations, healthcare and the welfare of survivors and victims of sexual violence.
The judgment however fails even the narrow mandate of the carceral system and appears to hold trial against the complainant.
Why Reveal Survivor’s Identity?
Particularly troubling in this context is the failure of the judgment to provide any meaningful redaction of the identity of the survivor.
Despite directions of the Supreme Court that the law not only protects against the publication of the name of victims of sexual violence but also any other details that render them identifiable, the judgment of the Sessions Court is full of such details.
These include not just the name of her husband or other identifiers such as the titles of articles published by her, but also references to her name in messages addressed to her or her contact.
However, it is reported that an appeal has been filed at the High Court of Bombay at Goa, and directions have been given to the Sessions Judge for appropriate redaction of identity.
As women, many of us have read judgments and measured them against our own experiences.
The reading of the judgment in such a context is a points-tally of caste-based and class-based safety cards – the courage to speak up and promptly respond to the incident, the financial means to do so, the access to legal advice, and the support of friends, family and colleagues at the trial.
Stacked against the hand dealt to the survivor in the Tejpal case, many of us would fall short.
However, these very privileges are then weaponised against her – her understanding of the law was used to justify greater scrutiny of discrepancies, and her conversations with lawyers used to suggest that the statement is fabricated.
Within the broader context of defamation suits against #MeToo posts, and refusal to constitute grievance redressal mechanisms for workplace sexual harassment, there are often calls for survivors to follow “due process.”
Judgments such as these underscore how much of “due process” can be shambolic, and the importance of evolving alternate mechanisms to allow justice and reparations for survivors of sexual assault.
(Nitika Khaitan and Sanjana Srikumar are Delhi-based lawyers. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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