The controversial Tarun Tejpal case has become the most sensational case of alleged rape and sexual assault at the workplace. The 527-page long judgment has raised concerns over the tonality and reasonings penned down by the learned sessions court judge. Aspersions are being raised by many on the approach and attitude of the judiciary over issues relating to offenses against women. This article aims at analysing these aspersions and understanding the approach of our judiciary regards handling cases of sexual assault and other sexual offences.
Brief Background of the Tarun Tejpal case:
A young woman journalist accused Tarun Tejpal, the editor-in-chief of the Tehelka magazine of sexually assaulting her. At that time, she was working at Tehelka with Tarun Tejpal and was helping in organizing a literary event called “THiNK” (Tehelka’s signature annual event). Tarun Tejpal was accused of sexually assaulting her on two occasions, i.e., on November 7 and 8 of 2013, in the lift of a five-star hotel in Goa. On November 18, 2013, she filed a complaint with Shoma Chaudhury, the magazine’s managing editor. In the email, the survivor requested her that a sexual harassment cell at their workplace be constituted to conduct an inquiry. This email exchange between the survivor and Shoma was leaked and then based on media reports, the Goa police took suo motu cognizance of the matter and initiated criminal proceedings. Tejpal was charged for offenses under Sections 376 [rape], 354 [assault or criminal force to woman with intent to outrage her modesty], 354A [sexual harassment], 354B [assault or use of criminal force to woman with intent to disrobe], 341 and 342 [wrongful confinement] of the Indian Penal Code. On 21 May 2021, the Goa sessions court acquitted Tarun Tejpal and set him free of all charges.
In this judgment, the judge has referred to the sexual past of the survivor in graphic details to condemn her and label her as a woman of misplaced moral compass. The court also did not consider her a sterling witness, which means the court did not deem the survivor trustworthy and accept her version without corroboration as she did not fit into the court’s notion of “ideal sexual abuse survivor”.
Is the Tarun Tejpal judgment a reflection of the thought process of the entire judiciary?
To do away with such typecasting of sexual abuse survivors, the lawmakers have deleted inequitable provisions of the law such as Section 155 (4) of the Indian Evidence Act that permitted the accused to produce evidence to show that the survivor was of “immoral character” to cast doubt on her version and vilify her as dishonest before the court. Similarly, based on the 172nd report of the Law Commission, Section 114A and 53A were introduced to the Indian Evidence Act and Section 146 of the Act was amended. This has now resulted in court presuming the absence of consent in rape cases, has made any claims of survivor’s previous sexual experience irrelevant, and effectively prohibited defence advocate from posing questions of general immoral character to the survivor during her cross-examination.
Despite these statutory provisions, the court in the Tarun Tejpal case has discredited the survivor by relying heavily on her past sexual experiences.
Moreover, there were judicial interventions on this aspect by the Apex Court on various occasions. Judgments of the Supreme Court in the following cases occupy centre stage when it comes to gender justice and women empowerment and has become an integral part of our statutory law.: –
In the Vishaka Vs State of Rajasthan it laid guidelines for the prevention of sexual harassment at the workplace;
In Laxmi Vs Union Of India it provided guidelines for the advancement and development of laws relating to acid attack offenses;
InJoseph Shine v. Union of India, it decriminalized adultery on one of the grounds that the section was gender discriminatory.
In the State Of U.P vs Pappu @ Yunus And Anr it cautioned against making any reference to the victim’s character, it stated, “Even assuming that the victim was previously accustomed to sexual intercourse, that is not a determinative question…It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.”
The recent judgment of the Supreme Court in Aparna Bhat v. The State of Madya Pradesh is now added to the abovementioned list. This judgment is pivotal as it safeguards the right and dignity of a woman during the trial process. In this judgment, the Court set aside an order granting bail, where one of the bail conditions required for the accused to get a rakhi tied to him by the prosecutrix. Additionally, it also lays down guidelines to prevent subordinate courts from passing such derogatory orders in the future by undertaking a sensitive approach in sexual abuse cases. This judgment delivered on March 2021 is supplementary to the pre-existing laws prohibiting character assassination of sexual abuse survivors during the trial process.
Following are few excerpts from the Tarun Tejpal judgment where the Session’s Court has made observations that are in contradiction to the guidelines laid down in Aparna Bhat Judgement and the abovementioned provisions of law.
|Guidelines laid down in Aparna Bhat Judgement
|Excerpts from Tarun Tejpal Judgment that are in contravention of the guidelines.
|Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments.
|“If the prosecutrix had held her jaw firmly closed how it would be possible for the accused to put his tongue into her mouth. The prosecutrix has stated that she pushed the accused as hard as she could, and she did so instinctively and reflexively whenever she pushed him. If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed her when she was pushed up against the wall or at least put her hands in between to prevent the accused from coming close. This is a narrative of extreme implausibility, and it is not possible to believe that the prosecutrix, a woman who is aware of laws, intelligent, alert and physically fit, (Yoga trainer) would not push or ward off the accused if she got pushed up against the wall, especially when she was facing him and especially when she saw the accused coming uncomfortably close to her in her private space. The prosecutrix has stated that she did not move her face to any side before the accused advanced towards her to kiss her. Her explanation that she did not imagine that the accused would try to do such a thing is not at all believable.” “It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behaviour on her own part – that a prosecutrix of sexual assault on consecutive two nights might plausibly show.”
|Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
|“That the prosecutrix was in touch with Adv. Rebecca John…… a women’s rights lawyer was also assisting and guiding the prosecutrix…. that the prosecutrix was also in contact with Advocate Indira Jaisingh…. her number is saved under the nickname “Brahmastra” With the help of experts, there may be a possibility of doctoring of events or adding of incidents. Advocate for the accused has thus rightly submitted that the deposition of the prosecutrix has to be scrutinized in that angle.”
|Courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that- “good” women are sexually chaste.a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”. women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony. testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and lack of evidence of physical harm in a sexual offence case leads to an inference of consent by the woman.
|“The CCTV footage does not support the statement that she was in shock or trauma and blinking in tears.” “The said photograph clearly shows the prosecutrix as cheerful and happy, and far from traumatized or upset in any manner, as she relaxes in the company of Robert de Niro and his daughter on the beach. It is also pertinent to note that the prosecutrix herself cheerfully shared the image with multiple friends, in real-time.” “The above photos show the prosecutrix to be absolutely cheerful and with a smile on her face and not disturbed, reserved, terrified, or traumatized in any manner.” “The messaging record shows that it was entirely the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances. Therefore, the WhatsApp chats of the prosecutrix, and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire because that is what the accused usually chose to speak to her about, unfortunately never her work, proves that the accused and the prosecutrix had a flirtatious conversation on the night of 7/11/13.” “From the prosecutrix’s composure visible in the CCTV footage before and after she goes to the second floor of Block 7 to Robert De Niro’s suite past the midnight of 8/9th November 2013, in which she recounts these incidents to her friends in two separate WhatsApp groups, to the fact that Mr De Niro is referred to by herself as a grandpa, owing to his age, to the fact that she also corroborates her previous year’s sexual encounter with Bob Geldof, these sexual encounters on both nights are stunning and absolutely indisputable evidence that the prosecutrix’s assertions about her sexual assault.” “The prosecutrix has claimed that she physically resisted the Accused with all her force while she was being assaulted. She has claimed that she was constantly struggling against the accused while he was forcibly touching her. However, she has admitted she did not receive any physical injury out of the incident. It is not believable that the prosecutrix would throw up such resistance and would not suffer any injuries on her body. The prosecutrix has also claimed that she is not aware whether the accused had received any injuries. The prosecutrix has admitted that she did not scratch or try to scratch the accused anywhere during the incident. The prosecutrix has admitted that she did not try to bang the lift walls as an instinctive response during the incident to dissuade the accused from assaulting her. It is crucial to note that the prosecutrix doesn’t claim to be frozen or immobilized, she claims to be forcefully struggling, pushing the accused with all her might, and trying to protect herself.”
The observations mentioned in this judgment are concerning and the Hon’ble High Court of Bombay has taken a serious note and admitted the appeal stating that “the sessions court’s judgment was like a “manual for rape victims” as it goes into how a victim should respond in such cases.” While it may be true that time and again many problematic and some even atrocious statements pertaining to sexual offenses have surfaced, one cannot undermine the power and zeal with which the Hon’ble Supreme Court calls out these mindsets and offers practical solutions which is the need of the hour. The Supreme Court’s pronouncements have a profound impact on our civil society. For this profound impact to continue, it becomes necessary that the subordinate judiciary adheres to the guidelines of the Apex Court, especially when those guidelines ensure constitutional rights. These guidelines are of paramount importance and binding on all the courts of the land, therefore deviating from those established set of guidelines impacts the society.