We, the undersigned Women’s groups and individuals, find the recent judgement acquitting Tarun Tejpal by a trial court in Goa shocking and deeply disturbing and feel that it 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 case, as is widely known, concerns a junior employee of Tehelka who accused the then Editor in Chief, Tarun Tejpal, of sexual assault and molestation on two occasions on the 7thand the 8th of November, 2013 during a work assignment, at the literary ‘Think’ festival in Goa. The allegations fall categorically within the definition of rape as per the extant law and demonstrate the exploitation of a relationship of trust, as also the 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 in Goa.
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Judge, Mapusa is legally unsound and replete with biases and conceptions of victimhood and womanhood that are not just outdated, but wholly irrelevant to the adjudication of sexual offences as per settled law. In the judgment, it appears as though the prosecutrix herself has been put on trial, as opposed to the accused.
One of the first biases that the court of the Additional Sessions Judge, Mapusa displayed was by noting that the prosecutrix 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 as relates to this is completely unwarranted. It cannot be imputed that merely by seeking legal advice or talking to people including those from NGOs or the NCW, there is a risk that evidence could be manipulated: both from the perspective of the prosecutrix as also the experts consulted, who have often set the standard for professional ethics themselves.
It is pertinent to mention that the prosecution seized the mobile phone of the prosecutrix and all her private conversations, even ones irrelevant to the incident came to light during the trial, putting the prosecutrix in the dock instead of the accused and permitting a roving inquiry into every aspect of her private life and communications. 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.
Despite 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 scrutinizing a rape victim’s behaviour to analyse whether it is “normative”. Unfortunately, a conception of what is normative is defined by the author of the judgment and is necessarily based in 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. Indeed, 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.
The prosecutrix had immediately following the incident 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. In that time, the prosecutrix had written to the CEO of Tehelka detailing the incident. She 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”.
At the very least, these ‘apologies’ acknowledge the incident and concomitant distress caused to the prosecutrix, 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. Respectfully, 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”.
Pertinently, whereas prosecution witnesses were held unreliable due to their proximity with the prosecutrix, the Court found the testimony of the co-worker and sister of the accused reliable in this regard. Conversely, the prosecutrix’ mother 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 in not taking leave from work to support the prosecutrix has been held against the prosecutrix, 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 Ld. ASJ held that the prosecutrix failed to demonstrate “any kind of normative behaviour…that as a prosecutrix of sexual assault might show.”
The Appellate Court will of course take a view on the basis of the evidence before it on the differential assessment of prosecution and defence evidence, as also on whether the inconsistencies/contradictions and so-called improvements by prosecution witnesses shake their credit. In our opinion, the inconsistencies which were evident in the judgement are natural given the traumatic nature of the incident and the protracted trial of seven years. The Appellate Court will also have to examine which if any contradictions rise to being material to the facts of the case. This assessment cannot be unmindful of the nature of cross-examination the prosecutrix was subjected to and also to the regressive notions reflected in the judgment as regards her behaviour. Much of the questioning as evident from the judgment, for example, questions on why prosecutrix had not averted her face, or put her hand in front of her mouth while the accused was kissing her, seeks to disprove the crime by unreasonably assessing the victim’s reactions. 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. It is further understandable that minute details, such as which specific buttons of a lift may be pressed by the accused, may not be noted by the prosecutrix, particularly during a short, traumatic incident. Yet, prosecutrix appears to have been repeatedly asked which button/s of the lift the accused had pressed, and her answers held against her. 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.
The Supreme Court and High Courts across the country have repeatedly held that minor discrepancies and variations in testimony given by witnesses, so 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. Yet, the antagonistic attitude of the Sessions Court in Goa was on display throughout the judgement, and the prosecutrix and her witnesses wrongly held to be unreliable. 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 Sessions Court judgement in the case against Tarun Tejpal harks back to a method of dealing with rape cases that has been held incorrect as per law in India, and in many other countries. Supreme Court judgments which say that the cross-examination should not be a means to harassment and causing humiliation to the prosecutrix have not been adhered to. The judgment of the Ld. ASJ is further reminiscent of earlier judgments like in Mathura’s case, in which signs of hurt and injury were considered crucial to prove rape. We are of the view that the Court has wrongly gone into the victim’s character and past sexual history, faulted her for her reactions and interactions around the incident, even faulted her for not going in for a medical examination though the reason given by the prosecutrix for this is correct and plausible. The judgement contains several details of her private or presumed private life, and the defence has been permitted to lead irrelevant but scandalous evidence in this regard.
The judgement also lays bare 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 Ld. ASJ 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]. Even otherwise, provisions of law as well as judgements of the Supreme Court do not allow humiliating questions to be put to a rape survivor, nor are scandalous questions in cross-examinations allowed. 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 sensitization, but also of a failure to follow precedent and prevailing law in letter and spirit.
- Malini Bhattacharya, President (AIDWA)
- Mariam Dhawale, General Secretary (AIDWA)
- Dr. Mohini Giri (Guild of Service)
- Dr. Jyotsna Chatterjee (JWP)
- Kavita Krishnan (AIPWA)
- Chhabi Mohanty (AIMSS)
- Ranjana Padhi, Women against Sexual Violence and State Repression (WSS)
- Sandhya Gokhale, Forum Against Oppression of Women
- Shabnam Hashmi, Anhad
- Yasmeen Aga, Aawaaz-E-Niswaan
- Vineeta Bal, Nari Samata Manch
- Leila Passah, Independent Consultant – Gender & Advocacy
- Dr Utsa Patnaik, Professor Emeritus, Jawaharlal Nehru University
- Subhashini Ali, Ex Member of Parliament (Lok Sabha)
- Sujata Gothoskar, Nari Atyachar Virodhi Manch
- Mukta, Stree Mukti Sanghatana
- Kavita Srivastava, PUCL
- Irfan Engineer, CSSS
- Prabhat Patnaik, Jawaharlal Nehru University, New Delhi
- Dr Archana Prasad, Jawaharlal Nehru University
- P. K. Sreemathi teacher , Ex Member of Parliament (Lok Sabha)
- Arundhati Dhuru, NAPM
- Shahira Naim, Humsafar Lucknow
- Geeta Seshu, Journalist, Mumbai
- Vimala K S, Karnataka
- Dr Chirashree Das Gupta, Jawaharlal Nehru University
- Shiraz Bulsara Prabhu , Kashtakari Sanghatna, PUCL
- Sharmila Ramteke, Karve Institute of Social Service
- Qutub Kidwai, URI West India
- Wandana Sonalkar, Retired Professor, TISS, Mumbai
- Suchetana Chattopadhyay, Jadavpur University
- Archana Kaul, Srijanatmak Manushi Sanstha
- Bimla Chandrasekhar, Ekta
- Deepika Tandon, Miranda House
- Ishita Mukherjee, Kolkatta
- Sudhanva Deshpande, LeftWord Books
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- Nupur Mittal, SPMC, Delhi University
- Komita Dhanda, Jana Natya Manch
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- Srabani, Delhi
- Meena Gopal, FAOW
- Kumkum Roy, JNU
- Saswati Sengupta, Miranda House
- Malini Subramaniam, Independent journalist
- Sandhya Shaily, Madhya Pradesh
- Ammu Abraham, Forum against oppression of women
- Shruti Sharma, None
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- Seema, Madhya Pradesh Mahila Manch
- Rivya Singh, Lawyer
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- Hanish Bhatia, Avaaz
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- Ddharaniikota Ssuyodhan , Lawyer
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- Pournima, Disha Institute
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- Adv. Ambily Martin, Consultant
- Anushree, Freelance.
- Ruati Samuel , Nil
- Sangeeta Gandhe, None
- Adv Sphurti Kothare ,
- Sudha Sundararaman, Tamil Nadu
- Debasish Chatterji , Retired journalist
- Indrani Chakravarty, NA
- Sarbani Sarkar, Delhi
- Aparna Mahiyaria, Independent Researcher
- Piya Chakravarty, NA
- Anagha Sarpotdar, Independent
- Punyavathi Sunkara, Telangana
- Kumkum Roy, JNU
- Vikas Rawal, Jawaharlal Nehru University
- Mahima Kapoor, none
- Sarika Sinha, Independent
- Rachna Sinha Roy, Counsel Quest
- Sunita Pande , Uttarakhand
- Rajkumar, CKR Law Associates
- Sandhya Phadke, Individual
- Madhubal, Insurance
- Shobana S, LIC OF INDIA
- Banumathi K, Public sector (Lic)
- K.Thulasitharan, Insurance Corp. Employees Union, Coimbatore Division
- R Amutha, Life Insurance Corporation of India
- Senthil Kumar T, AIIEA
- M Annadurai, Public Sector Enterprises (General Insurance)
- T. Vanjunathan , All India Insurance Employees Association
- Satheedevi. P, Ex Member of Parliament (Rajya Sabha)
- Sibani Pal, Jharkhand.
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- Tamilselvi , PSU
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- Jones L, LIC
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- Rajendiran R, LICPA
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- Selvaraj S, AIIEA
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- Srikanthan V, LIC of India (Retired)
- Dunu Roy, Hazards Centre
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- R Venugopal, Insurance
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- I support, I support
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- Pamela Philipose, Independent journalists
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- JOSHUA PAUL J, LIC of India
- Balasubramanian S, insurance employees
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- Rajeshwari , LIC
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- T.senthilvel , LIC OF INDIA
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- Resmi Unnikrishnan , LIC OF INDIA
- M Girija, AIDWA
- M. Geetha, Life Insurance Corporation of India
- Mini John, LIC of India
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- Srividyalakshmi, LIC of India
- Ajay Trivedi, M.J.P. Rohilkhand University, Bareilly U.P.
- Parthipan, INSURANCE
- Baskar B S, AIIEA
- A. K. Balameenakshi, LIC OF INDIA
- Ramesh, LIC OF INDIA
- Aishwarya Sethuraman , Law School
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- Rajeev Radhakrishnan, AIIEA
- V. Rajarathinam, LIC
- A. N. Ompriya, Home Maker
- K. Vadivel, LIC
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- Anuradha M.C., Life Insurance Corporation of India
- P Mahalingam, AIIEA
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- S Sobhana, Individual
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- R Manogar , Individual
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- Archana, LIC
- Prof. Mohan Rao, Former prof, Centre of Social Medicine and Community Health, JNU.
- Bhuvana, LIC
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- A. Meera Meenakshi, LIC of India
- N. Sumathy, Life Insurance Corporation Of India
- A. Rajan, AIIEA, COIMBATORE
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- P. Anand, LIC OF INDIA
- P K Vanaja L, LIC OF INDIA
- Sunita Sheel, Health, Ethics and Law Institute of Forum for Medical Ethics Society
- Tana, HT
- Vijayakumar R, LIC of India
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- Sridhar , Public sector – LIC
- K. Malathi, LIC
- Pramitha P, LIC OF INDIA
- N, Life Insurance Corporation of India
- A. Meera, Life Insurance corporation of india
- Priyadarshini Anand, LIC OF INDIA
- S. V. Shankar, AIIEA
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- Chandra, LIC
- A. Indira, AIEA
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- Satarupa Chakraborty, Delhi
- A Hendrycharles, Life Insurance corporation of India
- Anuvratty Saxena
- Rima Zaheer , Self employed
- Ramakrishnan R, Insurance
- Biju I K, All India Insurance Employees’ Association
- Govind Menon , LIC of India
- L. Kumar, Life insurance corporation
- Appunni Muttilpurayi, LICEU
- Rugmani M D, LIC of INDIA
- Sreeram M J, Individual
- P P Krishnan , AIIEA
- Bindu, LIC
- Suresh p, LIC OF INDIA
- Sasikumar V, AIIEA
- Sujatha, LIC of India
- S. Gunalan, Insurance corporation Employees Union, Vellore Division
- Shynu K P, AIIEA
- Rajeesh, LIC
- C C Vinod, LIC
- Rajeevan P K, Professional
- Sumesh Kollanandy, LIC
- Sreeram M J, AllEA
- Poornima A D, All India Insurance Employees Association
- S Balu, LIC
- Vidya M, LIC OF INDIA
- Bindu, LIC
- Sairekha Suresh, Cohere Consultants
- M C Sajay, AIIEA
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