Tarun Tejpal Acquittal Verdict Analysis: 527 Pages on 'How NOT to adjudicate a sexual-harassment case'

07 Jun 2021

By : Damanjit Kaur and Shubham Sharma

Categories : Articles

The Authors, Damanjit Kaur and Shubham Sharma are Partners at D&S Law Chambers.

On 21^st May, 2021, the Ld. Sessions Court, Mapusa, Goa, while passing a lengthy 527 page order, was “pleased” to acquit the former editor-in-chief of Tehelka magazine, Tarun Tejpal, in a case dating back to 2013, wherein he was accused of sexually harassing his then colleague in a lift of a five star hotel in Goa. Tejpal had been booked 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 (IPC).

Now, the acquittal, per se, is not an issue here, however, the supposed “legal and logical reasoning” adopted by the Ld. Sessions court in order to reach that verdict of acquittal is very much problematic in the present day and age.

At present, the said judgement acquitting Mr. Tejpal stands challenged by the State of Goa before the Goa Bench of the Hon’ble Bombay High Court.

The Fundamental Fallacies:

There is plenty that is fundamentally and outrageously wrong with the said judgement of acquittal which goes deep into the roots of our society’s embedded patriarchal mindset and much more.

The Goa Bench of the Hon’ble Bombay High Court, while issuing notice to Mr. Tejpal, in the Appeal filed by the State of Goa against the said order of acquittal, has categorically labelled the said order to be a “Manual for Rape Victims” as the same seems to be a commentary on how victims should behave and conduct themselves prior, post and during an attempt to sexually assault or rape is being made against them.

Relevance of Victim’s conduct:

It is imperative to understand that the conduct or behaviour of the victim in cases of sexual assault or rape is absolutely irrelevant and has no bearing in the determination of the conviction or acquittal of the Accused, unless the conduct in question proves unfettered consent.

The court adjudicating a case of sexual assault or rape should not be concerned with the victim’s prior or post conduct as the same remains completely outside its purview and ambit, as it is not a determining factor of the accused’s culpability in the case at hand. Further, the victim’s conduct, during the alleged offending act of sexual assault or rape, is at the disposal of the court only in those exceptional cases wherein, such a conduct in question ascertains the presence of victim’s consent towards the alleged act.

In the instant case, while passing the said order acquitting Mr. Tejpal, the Ld. Additional Sessions Judge (ASJ), has made several unsolicited observations about the victim’s past behavior and character holding that -

“The victim’s narrative is of extreme implausibility, it is not possible to believe that she, a woman who is aware of laws, intelligent, alert and physically fit (being a yoga trainer) would not push or ward off the accused if she got pushed against the wall”.

The Sessions court had, further in its judgment, questioned the victim's conduct, saying she did not exhibit any kind of "normative behaviour" such as trauma and shock which a victim of sexual assault might plausibly show.

As a result of such blatant vilification of the victim at the hands of the Court, major essential legal premises such as section 354 A of the Indian Penal Code, which seeks to establish that ‘sexually coloured remarks’ are sufficient to regard the accused guilty of sexual harassment, have been callously overlooked.

Further, the Ld. ASJ, instead of being concerned with the conduct of the Accused, has stretched the ambit of adjudication and has went on to make repeated references to the victim and, in the order, polices her on the precautions she ought to have taken to prevent the crime, by completely overlooking the context of the apology made by the accused of the act committed by him.

In addition, the Sessions court further overlooked and failed to take account of section 53A of the Indian Evidence Act 1872, which states that “Evidence of character (of victim) or previous sexual experience not relevant in certain cases” (For Example: offences under section 354 and section 376 IPC).

Often, the credibility of the prosecutrix/victim in sexual harassment cases is undermined by giving effect to baseless character assassinations of the victim which have no real bearing on the case.

Victim Shaming:

Consequently, when the conduct of the victim rather than that of the accused becomes the core concern of the court adjudicating a case of sexual violence against women, it further leads to victim shaming.

An unfortunate truth of our adjudicatory system is that even in the present day and age we still fail to understand that victim shaming and blaming is not at all acceptable. It leads to further victimisation of the victims and prevents the future victims from reporting such cases of violence and sexual harassment against women.

With an approximate 99.1% of sexual violence cases going unreported in India, it is imperative for the Indian courts to take a more gender-sensitized approach in dealing with crimes of sexual assault that do not further deter women from reporting.

In the instant case, while acquitting the accused the judgment proceeds to shame the victim, by making the following grossly irresponsible remarks:

“If the prosecutrix had held her jaw closed how would it be possible for the accused to put his tongue into her mouth? If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed her”.

The ill-conceived decision completely disregards essential principles of criminal law, thereby shifting the onus of proof entirely on the victim as opposed to the accused.

Onus of Proof in Sexual violence Cases:

Generally, in criminal jurisprudence pertaining to offences of sexual violence against women, the onus to prove the ‘absence of consent’ lies upon the prosecutrix/victim, once that is established the onus to prove rather disprove the entire prosecution case shifts upon the accused, especially in light of Section 114A of the Indian Evidence Act, 1872, which pertains to “Presumption as to absence of consent in certain prosecutions for rape”.

Now, when the courts of law proceed on to victim shaming and blaming by way of either character assassination of the victim or by unnecessarily concerning itself with the past or future conduct and sexual relations of the victim, it inadvertently results in shifting not only the onus of proving the commission of the alleged sexual acts but also indirectly asks the victim to prove her “Chastity” and “Character”.

As it has happened in the case at hand, wherein, throughout the length of the order acquitting Mr. Tejpal, time and again the victim was questioned, schooled and policed by the Ld. ASJ on how to conduct herself when an attempt to sexually assault her is being made and how to prevent it by curtailing her freedom of movement in late hours.

The Tejpal judgment also proves problematic since it retracts the Apex court’s decision in Aparna Bhat & Ors. V. State of Madhya Pradesh & Anr. made earlier this year, whereby the court laid down exhaustive guidelines to be followed by the judiciary in deciding matters of sexual violence against women. A bench consisting of AM Khanwilkar and S. Ravindra Bhat, JJ has held that ‘the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances’. This decision was a watershed moment in the history of gender justice in India, since it strikes down stereotypes such as the idea of an ‘ideal victim’. However, the tests imposed in Aparna have been actively ignored by Justice Joshi in the Tejpal verdict.

In addition to all the above stated grossly irresponsible and absurd remarks, while passing the said order of acquittal, the Sessions Court has further failed to abide by essential principles of law and criminal jurisprudence as prescribed in statutes and by legal precedents.

KEY TAKEAWAYS:

The victim’s prior or post conduct should have no real bearing in the determination of either conviction or acquittal of the accused unless the conduct proves presence of consent towards the alleged act.
Victim shaming and blaming, results in further victimisation of the victims and is an evil tool to question the credibility of the victim by way of mere character assassination.
It is always to be remembered that it is the Accused who is at trial before the court of law and not the prosecutrix. Hence, once the absence of consent in such cases is established, the conduct and behaviour of the accused should be in question and not that of the prosecutrix/victim.
Cases pertaining to crime against women must be. Dealt with utmost sensitivity and with a gender sensitised perspective.

The Hon’ble Bombay High Court has now listed the appeal for further consideration on 24th of June, 2021. A proper legal scrutiny of the Sessions Court’s order is eagerly awaited by all concerned.

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