Vrinda Grover: How Tejpal judgement ends up slandering the rape survivor / Tejpal case: Trial court verdict like ‘manual for rape victims’, says HC
The 527-page document is so cluttered with references to the past sexual history of the prosecutrix that it effectively invisibilises the accused On May 21, 2021, the court of additional sessions judge Kshama M Joshi, Mapusa, pronounced her judgement acquitting former Tehelka editor, Tarun Tejpal, of all charges of sexual harassment, molestation, rape etc of a young woman employee, in 2013 at the THINK festival in Goa. This 527-page judgement, which grants benefit of doubt to the accused, indicts, slanders and smears the rape survivor.
This judgement deserves comment, not because Tejpal stands
acquitted of forced oral and digital sex, that is a matter for appellate courts
to determine, but because it is replete with statutorily prohibited references,
to her identity, graphic details of her past sexual history and censures her
character. The reasoning, language and rationale scribed in the judgement is a
backlash to the campaign and 2013 legal reforms, challenging male entitlement
over women’s bodies and assertion of sexual autonomy, bodily integrity and
privacy as elements of dignity for women.
Tejpal case: Trial court verdict like ‘manual for rape victims’, says HC
There is no quarrel with the legal benchmark that if a court
finds the sole testimony of the rape victim inconsistent and unreliable, it may
acquit the accused. The ghost of Mathura verdict, however, continues to haunt,
as the court underlines the absence of injury, medical and forensic
corroboration. Pertinently, the complaint of oral and digital rape is made more
than a week after the incident. Steeped in stereotypes and an entrenched
disbelief of the woman’s testimony, the court concludes, “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….” The court deploys the young woman’s strengths and
accomplishments to dispute her testimony.
The court’s scrutiny of the young woman’s testimony is
embedded in stereotypes as it remarks: “The above photos show the prosecutrix
to be absolutely cheerful and with a smile on her face and not disturbed,
reserved, terrified, or traumatised in any manner.” The court proceeds to
conclude: “It is extremely revealing that the prosecutrix’s (victim) account
neither demonstrates any kind of normative behaviour on her own part…”
In Gurmit Singh (1996) verdict, the Supreme Court held that
the rape victim was not an accomplice to the crime. The Tejpal judgement puts
her in the dock, as the accused. Law mandates that the nodal issue in a rape
trial is the conduct of the accused man and not the character of the rape
victim. Recognising rape trials as a site of revictimisation, certain red lines
have been drawn by statute. The Proviso to Section 146(3) of the Indian
Evidence Act prohibits adducing evidence, or the cross-examination of the prosecutrix
about her general immoral character or previous sexual experience, because the
same is irrelevant to determine whether or not she has been raped. These legal
prohibitions are cited in the judgement but ignored and defied. Prosecution and
defence witnesses, being family and friends of the accused, were allowed to
depose and place on record irrelevant, inadmissible evidence of the young woman’s
past sexual history.
In the Nippun Saxena (2019) judgement the apex court
reiterates, “While every latitude should be given to the accused to test the
veracity of the prosecutrix and the credibility of her version through cross-examination,
the court must also ensure that cross-examination is not made a means of
harassment or causing humiliation to the victim of crime.” Accused Tejpal
secured access to a complete clone copy and data of the young woman’s mobile
phone through an Order of the Supreme Court in 2015. This egregious breach of
her privacy was exploited in cross examination, in brazen contempt of the law.
Supreme Court, in the Aparna Bhatt (2021) judgement,
prescribes that, “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 interalia, Good women are sexually chaste; Testimonial evidence
provided by women who are sexually active may be suspected when assessing
‘consent’ in sexual offence cases; and xi. Lack of evidence of physical harm in
a sexual offense case means consent was given.”
The judgement is so cluttered with
references to the past sexual history of the prosecutrix, flooding the reader’s
mind with descriptions of the woman’s past consensual sexual interactions, that
it effectively invisibilises the accused Tejpal, let alone acknowledge his role
as her boss, a person in a position of authority and trust. The stage is then
set for the court to discard her, not just as an unreliable witness but rather
as a liar and manipulator.
Arraigned as accomplices of the
rape survivor in the judgement are prominent feminist lawyers, whom she may have
consulted, as is her fundamental right. An email from the victim to me and
others, six months prior, for an article apropos the rape compensation fund,
finds mention in the judgement. Research and knowledge of rape law amendments
is insidiously projected as a suspect circumstance and unrelated communications
with activists cited and allude to the case being a feminist conspiracy. The
reluctance and unease of the court to treat complaints of forced digital and
oral sex as forms of rape under the amended definition of Sec 375 IPC, by young
women who do not adhere to the patriarchal moral code of “good women”, reminds
one of the “feeble no” reasoning, acquitting M Farooqui in 2017.
Does her sexual self-determination
disentitle her from justice as the harm to her dignity eludes the patriarchal
calculus? Feminist solidarity and support for women survivors of sexual
violence will be needed till judicial banter ends and justice begins.
Tejpal case: Trial court verdict like ‘manual for rape victims’, says HC
The High Court of Bombay at Goa on Wednesday observed that the judgment of the sessions court that acquitted Tarun Tejpal, former editor-in-chief of Tehelka, in a case of rape and sexual assault was “a kind of a manual for rape victims” on how they should conduct themselves. Granting leave to appeal to the Goa government that has challenged the May 21 judgment of the sessions court, a vacation bench of Justice S C Gupte issued notice to Tejpal. The case will be heard next on June 24. The sessions court had on May 21 acquitted Tejpal, who was accused of raping and sexually assaulting his then colleague in a hotel elevator on November 7, 2013, and November 8, 2013.
On Wednesday, Justice S C Gupte said the sessions court’s
verdict shows that the case of the prosecution is “not even fully stated”….
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