The Network of Women in Media, India (NWMI) critiques the trail court judgement acquitting Tarun Tejpal, chief editor of Tehelka magazine, charged in 2013, of rape and sexual harassment of a young woman journalist working in the same magazine, as a grave miscarriage of justice, with the court putting the victim on trial, persistently shaming and discrediting her. NWMI calls the judgement a setback for women movement as a whole with the court giving short shrift to consent, the defining factor in sexual assault including rape.
The Network of Women in Media, India (NWMI) is deeply disturbed by the judgement pronounced by a District & Sessions Court at Mapusa, Goa, on May 21, 2021, acquitting journalist Tarun Tejpal, the Editor-in-Chief of Tehelka magazine, who was charged, in 2013, of the rape, unlawful confinement and sexual harassment of a young woman journalist working at the magazine.
In what is a new low for cases of sexual assault, the 527-page judgement in State (through CID CB North Goa) vs Tarunjit Tejpal persistently shames the survivor as though she were the one on trial[1]. The judgement by Additional Sessions Judge Kshama M. Joshi sets out standards for a “sterling witness” and the “normative” look of a traumatised woman and attempts to rip into the survivor as she “failed to pass any of the tests”.
The judgement gives short shrift to consent, the defining factor in sexual assault including rape. In doing so, it ignores apology emails by Tejpal himself including one in which he acknowledged a “shameful lapse of judgement that led me to attempt a sexual liaison with you on two occasions on 7 November and 8 November 2013, despite your clear reluctance that you did not want such attention from me”. Despite Tejpal admitting in his email to non-consensual conduct towards the survivor, and despite the survivor’s unequivocal testimony that she kept saying “no”, the judgement disregards the vital issue of consent.
During the course of the trial, the survivor had to approach the High Court of Bombay at Goa against the hostile and humiliating cross-examination in the trial court relating to her personal life.
During the course of the trial, the survivor had to approach the High Court of Bombay at Goa against the hostile and humiliating cross-examination in the trial court relating to her personal life. The High Court in December 2019 ordered the trial court to protect her from such “extraneous and irrelevant questioning”[2]. Nevertheless, the trial court judgement cites and publishes many of the personal details extracted from her during the unlawful cross-examination.
Although there are undoubtedly vast differences in age, class, caste, location and context, the victim-blaming and shaming of the survivor in the Tejpal case is eerily reminiscent of the 1979 verdict in the ‘Mathura’ rape case (Tukaram and Another vs State of Maharashtra)[3]. In that landmark case, in complete disregard of the power differential between a minor Adivasi girl in custody versus the policemen accused of raping her, the accused were acquitted by the Supreme Court, with the controversial judgement claiming that she was “habituated to sexual intercourse” and concluding that “no marks of injury” on her body implied consent.
Forty years on, it is appalling to read another judgement that accuses a sexual assault survivor of not doing enough to protect herself, cites her sexual history and accuses her of not looking sufficiently devastated, ignoring the guidelines laid down by judgements of the Supreme Court and the Criminal Law Amendment Act, 2013.
This is NWMI’s deep dive into the judgement, which we believe is a grave miscarriage of justice and a massive setback for the Indian women’s rights movement and the safety of working women in particular.
This is NWMI’s deep dive into the judgement, which we believe is a grave miscarriage of justice and a massive setback for the Indian women’s rights movement and the safety of working women in particular.
State vs Tarunjit Tejpal
The case dates back to November 2013 when the survivor, then 27, was an employee at Tehelka magazine. She had complained to her senior in Tehelka that Tejpal sexually assaulted her twice including by forcefully lifting her clothes, groping and penetrating her digitally and orally while she was in an elevator with him during Think festival, an event organised by Tehelka in Goa on November 7 and 8. Tejpal is the founder and owner of Tehelka magazine and was the Editor-in-Chief of the magazine at the time of the incident.
When the survivor’s internal complaint became public knowledge through media reports, the Goa government registered a police complaint against Tejpal. He was charged under the Indian Penal Code’s Sections 354A (sexual harassment), 354B (assault or use of criminal force to woman with intent to disrobe), 376 (rape) and 376(2)(k) (rape of a woman by a person being in a position of control or dominance over the woman). Police later added charges under IPC Sections 341 (wrongful restraint), 342 (wrongful confinement), 376(2)(f) (person in a position of trust or authority over women, committing rape of such women), 376C (sexual intercourse by a person in authority) and 354 (assault or criminal force to woman with intent to outrage her modesty).
Tejpal was arrested on November 30, 2013 and secured bail seven months later on July 1, 2014. It took nearly four years for the ‘fast track’ court trial to commence – on September 7, 2017[4].
Person ‘in a position of trust or authority’
The Tejpal case is one of the first prominent cases in India to be tried and prosecuted under the Criminal Law Amendment Act, 2013[5], which marked the culmination of decades of struggle by the country’s women’s rights movement for an expansion of the legal definitions of the acts that constituted rape and the contexts in which consent is given.
The new law recognised that when a person is “in a position of trust or authority”, he has to be held to stricter standards than other individuals while determining whether he had secured consent for a sexual encounter. The reasoning for this is that the power he wields over the woman could include not just physical force but also a psychological and/or emotional sway in addition to influence that could affect her earning capacity, ruin her position within her family, social circle and/or profession and even destroy her professionally if she antagonises him.
In this context it is important to note that Tejpal was a powerful entity in the survivor’s profession at large and in the organisation that employed her, that she had known him from childhood as a family friend, as her father’s former colleague and friend, a man she went so far as to describe as a “paternal figure” in her written complaint to Tehelka.
The vulnerability of her situation was reflected in the IPC sections under which Tejpal was charged by the Crime Branch of the Goa Police. 376(2)(f) covers a category of accused who “being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman”. Section 376(2)(k) covers a category of accused who “being in a position of control or dominance over a woman, commits rape on such woman”. Conviction under these sections attracts a minimum penalty of 10 years rigorous imprisonment (the punishment for rape not covered by these sections is 7 years).
Furthermore, according to Section 114A of the Indian Evidence Act[6] (an amendment introduced in 1983 in the aftermath of the nationwide outrage over the ‘Mathura’ rape case judgement), “where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.” The vision behind this amendment was an understanding that in view of the general impossibility of providing external corroborative evidence in cases of rape, a woman’s testimony on whether or not she had given consent should be made paramount in law.
These new laws, while progressive and sensitive to survivors’ concerns on paper, have presented a challenge to survivors, law enforcers, lawyers, the judiciary and activists alike. It has taken activists a long time to get the law to acknowledge that medical evidence is not the primary determining factor in rape and other forms of sexual assault. However, the implementation of these evolved laws is even more dependent than usual on robust investigation, the education of investigating officers regarding the nuances of the law, and sensitisation of the legal community, including the judiciary, as well as the media.
This point is illustrated by the Tejpal case where the entire edifice of the judgement is built on slandering the survivor through a detailed and hostile scrutiny of her personal and professional life both before and after the incident, rather than the core issue of the act of violence done to her without her consent.
The trial and judgement are reminders, if any were needed, of how women’s reputations and peace of mind are mutilated if they bravely step up to speak out against sexual violence. This is why so few women do.
Another core issue, that of sexual harassment at the workplace, has not even been adequately adjudicated, save for a concession that the accused was in a position of power over the survivor. Throughout the eight-year-long process to secure justice, all the odds were stacked against the survivor. There were multiple attempts to slander her, her personal data was obtained, her request to depose through video-conferencing on account of rampant Covid-19 infections was rejected and a warrant was issued for her appearance in the trial in the midst of the pandemic.
The trial and judgement are reminders, if any were needed, of how women’s reputations and peace of mind are mutilated if they bravely step up to speak out against sexual violence. This is why so few women do.
A survivor on trial
The judgement in the Tejpal case is full of repetitive and needless detail. It repeatedly attacks the survivor in its language (Page 255, Paragraph 154: “prosecutrix is lying”; Page 287, Paragraph 182: “PW1 with typical evasiveness answered”) and its selection of facts, and it reads like a public trial of the survivor rather than the accused, that too without regard to the legal requirements of expunging any information or details that can identify her. (Note: The Bombay High Court at Goa has since, on May 27, 2021, on an appeal by the Goa government, directed the trial court to redact all references in the judgement that end up disclosing the survivor’s identity.)
The most striking aspects of the judgement in the Tejpal case are:
(i) That it mirrors the defence arguments
(ii) It simply brushes aside apology emails written by Tejpal himself, including the one in which he concedes that the survivor had not consented to a sexual encounter with him.
To elaborate:
1) The accused himself sent two emails on November 19, 2013, admitting his lapses[7], citing which he shortly thereafter chose to “recuse” himself from the office for six months: the first he described as an informal or personal apology and sent to the survivor; the second he sent the survivor was a more formal, “unconditional apology”. In this second “unconditional apology” to her, Tejpal admits[8] to a “shameful lapse of judgement that led me to attempt a sexual liaison with you on two occasions on 7 November and 8 November 2013, despite your clear reluctance that you did not want such attention from me”. This email unequivocally establishes, in his own words, the non-consensual nature of his actions.
It was the prosecution’s case that e-mails sent by Tejpal on November 19, 2013, a day after the woman journalist’s first complaint, amounted to a “confession”. The Indian Evidence Act does not define “confessions”[9]. The trial court has accepted defence arguments that Tejpal’s apologies do not amount to a confession and held this in his favour. However, legal experts have pointed out that the emails do amount to what in law is an “admission” of an act and is relevant and admissible under the Evidence Act[10]. Tejpal acknowledged that the emails, which are part of the prosecution’s evidence against him, were sent from his email account and with his knowledge. Yet, he did not explain what he is apologising for[11] if all that took place was “banter”, or a consensual act, which the survivor with her repeated, unequivocal testimony contested stating that she kept telling him “no”, and “to stop”, “just stop” the act[12].
Both Tejpal’s sister Neena Sharma, who was then Tehelka’s Chief Operating Officer, and former Managing Editor Shoma Chaudhury had submitted in their testimonies that they told Tejpal to send the apologies. The judgement concludes from their testimonies that the “apology was not sent voluntarily by the accused”, but that it was sent due to the “explicit pressure and intimidation by prosecutrix on PW45 to act swiftly and also due to the inducement and promise made by the prosecutrix to PW45, which in turn was communicated to the accused, that the matter would be closed at the institutional level, if the accused were to tender an apology”. (Pages 325-326, Paragraph 202; PW45 is Shoma Chaudhury).
The court has also astonishingly accepted Tejpal’s contention that his apology emails were not voluntary but were sent due to “explicit pressure and intimidation” from the woman journalist (Pages 325-326, Paragraph 202) on Chaudhury, who then wrote the apology, while Sharma sent it from his mobile with his knowledge.
In a subsequent email with the subject line “Atonement” sent on November 20, 2013, Tejpal had written to Chaudhury: “The last few days have been most testing, and I squarely take the blame for this. A bad lapse of judgement, an awful misreading of the situation, have led to an unfortunate incident that rails against all we believe in and fight for. I have already unconditionally apologised for my misconduct to the concerned journalist…” This email from Tejpal was circulated by Chaudhury to the entire Tehelka office along with a covering note explaining that he would be stepping down from his position at Tehelka for six months. The court has decided that this mail too cannot be seen as an admission of guilt. (Pages 334-335, Paragraphs 210-211)
Regarding the conclusion of “inducement” drawn by the judgement, lawyers have pointed out that Section 24 of the Evidence Act requires that an inducement can be deemed to have been offered for a confession only if it comes from “a person in authority”, while here the survivor was not in a position of authority over Tejpal, Chaudhury, or Sharma. In fact, they were her superiors in the office.
The claim of “explicit pressure and intimidation” on Chaudhury and Tejpal by the survivor is extraordinary considering that they were her managing editor and editor-in-chief, respectively. The judgement too acknowledges that Tejpal was in fact “in a position of trust or authority towards the prosecutrix and was in a position of control and dominance over the prosecutrix” (Page 56, Paragraph 25). The judgement is unclear as to which of the survivor’s emails to the Tehelka management served as intimidating or coercive. Her email dated November 18, 2013, to Chaudhury, which is her complaint, asks for a sexual harassment enquiry and, “at the very least”, an apology from the accused (Page 87, Paragraph 36). Experts have stated this is erroneous and that it would be a stretch to categorise the act of lodging a complaint itself, wherein certain remedies are sought, as “an inducement to confess”[13].
2) The judgement dismisses the survivor’s mother, close friends and colleagues as non-credible witnesses due to their proximity to her, but it readily believes the accused’s sister, business partners, close friend and employees despite their ties to the accused and the clout he wields over some of them.
The judgement dismisses the survivor’s mother, close friends and colleagues as non-credible witnesses due to their proximity to her, but it readily believes the accused’s sister, business partners, close friend and employees despite their ties to the accused and the clout he wields over some of them.
3) The judgement defies universal principles of fairness and natural justice and India’s statute books in its response to the survivor’s call records and messages seeking early legal advice and support from women lawyers and activists. The judge has deemed all such communication as evidence of “doctoring”[14] (Page 54, Paragraph 23: “With the help of experts there may be possibility of doctoring of events or adding of incidents”), thus undermining her right to access justice. The judgement even insinuates that the survivor’s knowledge of the law and prior contact with feminist lawyers is part of a grand conspiracy. This theme runs through the judgement. It implies that the complainant is to be viewed with suspicion simply because she is knowledgeable about the law and exercised her fundamental right to consult lawyers before making a formal statement in a criminal case.
4) Having allowed the defence to use material from the survivor’s mobile phone that is unconnected to the allegation of assault, the judgement then reproduces her messages to close friends on her mobile phone to portray her as having “flirtatious and sexual conversations” and makes retrospective, forced connections between these unrelated conversations and the assault in question.
5) The judgement records that during the cross-examination, the survivor did not wish to share the contents of her email account in court for multiple reasons including privacy concerns and professional considerations. Regarding the latter, the judge writes that the survivor pointed out “she has worked as a journalist for the last seven years and her account is full of sensitive details which could compromise the lives and identities of her sources and she will not give up that information to anyone including the court”. (Pages 286-288, Paragraph 182) Immediately after the above sentence, the judgement concludes that the survivor’s unwillingness to show “the email” to the Court shows that she “wants to hide something” and thus “cannot be called reliable and trustworthy” – the judge does not specify which among the many objections raised by the survivor prompted this conclusion. (Pages 288-289, Paragraph 183)
The choice of words and the sequencing of observations here imply that the survivor’s desire to protect her sources is viewed as proof of her untrustworthiness. If this is the case, then the judgement has shown a complete lack of understanding of journalism, the importance of sources in journalism and the responsibility of journalists to guard the confidentiality of their sources.
If this is the case, then the judgement has shown a complete lack of understanding of journalism, the importance of sources in journalism and the responsibility of journalists to guard the confidentiality of their sources.
For media professionals reading this judgement, the survivor’s stance with regard to her sources is particularly worth noting because it is both commendable and admirable that she refused to compromise her sources at great cost to herself and at the risk of jeopardising the value placed on her testimony during the trial.
Discrediting the survivor
The defence team’s strategy in Tejpal’s case appears to have been to take the focus away from the evidence against him, including his own apology emails, and instead undermine the survivor’s testimony by continuously referring to her personal life or other factors unconnected with the incident.
The approach to discrediting her was three-pronged:
- obfuscate by referring to irrelevant details of her personal life and burying her under a mountain of such questions;
- vitiate by probing her sexual history which, repeat, is not admissible by law;
- violate her right to privacy and that of those close to her by citing WhatsApp messages to friends in years preceding the incident.
Permitting defence lawyers to cite a survivor’s sexual history violates Sections 53A[15] and 146[16] of the Indian Evidence Act, under which it is neither lawful nor relevant to ask such questions in a prosecution of rape. It is the court’s duty to prohibit and regulate the cross-examination. In this case, not only were defence lawyers allowed this line of questioning, incessantly, but their interrogation of the survivor is prominently displayed in the judgement, which is now in the public domain.
In June 2016, Tejpal had obtained permission from a Goa court for an in-camera trial even during examination of witnesses other than the survivor[17]. The legal provision for in-camera trials in rape cases was introduced to safeguard the privacy of rape survivors in a society that stigmatises them. It is therefore ironic that the accused was allowed to use this provision for his own protection while a mockery has been made of the survivor’s right to privacy with the judgement reproducing large parts of the insensitive and repeated cross-examination to which she was subjected.
As per the aforementioned plea submitted by the survivor to the High Court of Bombay at Goa in December 2019[18], during the relentless cross-examination regarding her mobile communication with third parties unrelated to the case, she was bombarded with questions intended to shame, traumatise and exhaust her. In its entirety, the survivor’s cross-examination lasted for 16 months (on and off) from October 2019 till January 2021, compelling her to put her life on hold for repeated court appearances in Goa. The contents of the cross-exam run into more than 700 pages, which is longer than the judgement.
Although on October 31, 2019, the judge in the trial court orally upheld the survivor’s objections to questions violating the protections offered by the Indian Evidence Act, in the courtroom, these irrelevant and aggressive questions had continued. They ultimately found their way into the judgement.
The punishment in the process
The survivor recorded in her application to the High Court of Bombay at Goa in December 2019 that she broke down and was traumatised in the courtroom on being subjected to hostile and illegal continued cross-examination[19] on her sexual history and even her parents’ sexual history, and that the defence hectored her while asking her to recollect and confirm private messages unrelated to the case that were displayed on the court’s computer screen. The survivor’s High Court application lists the questions asked by the defence to humiliate her and tarnish her reputation – they are so insulting and distressing in nature, that, in the interests of decency and respect for the survivor’s privacy, NWMI will not restate them here.
The survivor requested the High Court for a physical screen to be placed between her and Tejpal in court during questioning. Her request was based on an existing legal provision[20] that permits a survivor to record her testimony from behind a screen, a provision designed to protect a survivor from the anxiety and intimidation generated by physical proximity to the accused – but her request was denied.
The High Court of Bombay did, however, in its order of December 12, 2019, direct the trial court to protect the survivor from “irrelevant and extraneous questioning”; it also allowed her to withhold her name, address and personal details, and to file the required documents in the High Court in a sealed envelope. But the May 21, 2021 judgement overlooks the High Court ruling and reproduces large sections of the unlawful cross-examination about the survivor’s personal life and other irrelevant, illegal questions along with identifying information such as her personal email and details of her family. This is in violation of Section 228A of the Indian Penal Code[21], a punishable offence, which prohibits the printing or publishing of “the name or any matter which may make known the identity” of a rape survivor, and the Supreme Court’s guidelines[22] issued in 2019 to protect rape complainants’ confidentiality. (Note: Within days of the judgement being delivered on May 21, 2021, the Government of Goa challenged the order on these and other grounds, calling it “very astonishing” and “erroneous in law”[23].)
During the COVID-19 pandemic the survivor requested that she be excused from a physical appearance in Goa as she was herself unwell and also caring for elderly family members; she requested that she be allowed to give testimony at Goa Sadan in Delhi, in the presence of an appropriate authority. Instead, the judge issued warrants against the survivor[24], her mother and her spouse on September 4, 2020, against which the survivor had to once again approach the High Court.
“Digital strip search”
Months before the trial was due to begin, Tejpal had approached the Supreme Court in 2015 through Special Leave Petition 66/2015[25] and obtained a cloned copy of the survivor’s mobile phone as part of the “relevant documents” of the case (since some SMS and email communication between them had been cited as evidence against him in 2013). He thus ended up with access to nearly 2 lakh messages sent and received by her over several years that had no relevance whatsoever to the case.
The police use mobile phone extraction tools to download the contents of survivors’ mobile phones and other digital devices if these come up in evidence. Indian law lacks guidelines directing investigating agencies not to allow blanket data probes and make them specific and limited to information relevant to the crime. In addition, the digital evidence technology available to Indian investigating agencies is not always up-to-date enough to enable police to collect targeted pieces of evidence from smartphones rather than entire digital copies.
This means that, as in the Tarun Tejpal case, an accused could obtain the entire spectrum of a survivor’s virtual communication simply because a couple of emails or SMSs were cited as evidence against him. While this is obviously a massive invasion of privacy irrespective of the nature of the complaint, it is particularly objectionable in rape cases since defence teams invariably put the survivor’s character in the dock. Thus, the possibility of the accused getting access to her entire digital communication, which could then be weaponised against her, is a particular deterrent to any rape survivor who wishes to file a complaint.
This is not to say that Indian law has never been sensitive to survivors’ privacy concerns in the matter of providing digital access to those accused in rape cases. The case of Malayalam actor Dileep is relevant here. Dileep is accused as the prime conspirator in the rape of a woman colleague in the film industry. The main accused had recorded the actual rape on his phone, and those visuals were transferred to a memory card. When Dileep sought a copy of the memory card to prove his innocence, the Kerala government opposed his request. In 2019, the Supreme Court also rejected[26] his plea, citing the overarching privacy and safety concerns of the survivor. The apex court instead permitted him a partial, regulated inspection of the contents of the video under conditions that would ensure the privacy of the survivor.
In the United Kingdom, the practice of the police storing “full digital data downloads” of the mobile phones of rape complainants[27] for the purpose of investigation was dropped in July 2020. This was after the UK’s Centre for Women’s Justice (CWJ) supported by the Equality and Human Rights Commission, took up the cases of two women survivors in a campaign against this “Digital Strip Search”. A UK government investigation agreed that “excessive amounts of personal data” were being extracted from survivors, and this was deterring them from coming forward[28]. Campaigners celebrated the end to digital strip searches, with CWJ’s Director Harriet Wistrich saying “they should never have been used in the first place”[29].
It is time for Indian activists and lawmakers to work towards terminating digital strip searches here too, since they end up being a punishment for survivors irrespective of the final outcome of their case.
In the case under discussion here, the access Tejpal’s team got to the survivor’s phone resulted in the dredging up of material, both personal and professional, which were extraneous and irrelevant to the incident but used to degrade, demean and harass her in court.
It is time for Indian activists and lawmakers to work towards terminating digital strip searches.
Failure of employers
At this point, it is important to remember that it was not the survivor who initiated the criminal prosecution, it was the Government of Goa that did so, and she has fully cooperated with the police investigation for almost eight years[30]. It was a watershed moment for the Indian women’s rights movement – several years before the global #MeToo movement – when this young woman courageously spoke truth to power within her own organisation by reporting a sexual assault by the most senior individual in her newsroom. She further risked her position within the organisation by pointing out that no committee existed in Tehelka to combat sexual harassment as per the Supreme Court’s Vishaka Guidelines Against Sexual Harassment at Workplace[31] in force at the time. She went on record and requested an internal probe by the management.
Tehelka, which positioned itself at the time as a voice of the marginalised and a feminist publication, failed to live up to the standards to which it held others. The Vishaka Guidelines laid out by the apex court in 1997 required the organisation to have an internal complaints committee in place at all times to be ready to conduct an enquiry as and when any complaint of sexual harassment arose. Tehelka was in violation of the existing guidelines of the Supreme Court by having no such committee. It announced the formation of one after the survivor raised the issue.
With an internal probe still pending, when news of the complaint broke in the media, Chaudhury in her capacity as Tehelka’s managing editor claimed on media platforms that the survivor and Tehelka staff were “satisfied” with whatever had been done till then. She shockingly described the incident as an “internal matter”[32] and asked the media not to interfere.
Despite the fact that she was taking on the topmost managers in her organisation at the time, the survivor stuck her neck out again by publicly calling out Chaudhury for what she described as falsehoods. Outlook magazine quoted[33] the survivor as saying to NDTV that she was “deeply disappointed” by Tehelka’s response, and adding: “To claim that other journalists in Tehelka are satisfied is also false since my testimony has not been publicly circulated within Tehelka, only Tarun’s letter of ‘atonement’ has.”
The survivor reiterated her demand for an internal enquiry as per the Vishaka Guidelines but this enquiry did not take off once the criminal investigation by the Goa Police began. It is tragic that while the survivor was betrayed by her organisation in her quest for due process within the workplace, it is she who was dragged through the mud by the defence during the trial.
It must be noted, however, that the survivor’s actions have sparked intense discussions in newsrooms.
It must be noted, however, that the survivor’s actions have sparked intense discussions in newsrooms. These conversations have gone a long way towards ensuring a better understanding of gender-based violations in media organisations. She has also given courage to other women to jettison shame and speak out about workplace harassment and violence in newsrooms.
The way ahead
NWMI has consistently campaigned against sexual harassment at the workplace and worked towards strengthening institutional redressal mechanisms while ensuring that they are sensitive to women survivors. As a network of women media professionals, we are particularly engaged with the challenge of ensuring systemic change in media organisations. The absence of institutional mechanisms in Tehelka in 2013 to address the survivor’s complaint, a decade and a half after the Supreme Court made internal complaints committees mandatory for workplaces, is itself a stark reminder of the short shrift given to the right of women journalists to work with dignity and security.
Workplace cultures in newsrooms must examine toxic masculinity and male entitlement. The first step towards this is to respect the need for preventive and redressal systems, which are today mandated under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
This analysis has been undertaken to better understand the judgement in the Tejpal case and examine its implications for the survivor as well as for other women. We hope it will encourage further discussions in the media, in civil society and among citizens at large about a judicial process that we believe has undermined a survivor’s right to a fair trial as well as her right to dignity and privacy. Furthermore, police investigations and judgements that violate the privacy of sexual assault survivors, either by revealing to the public the identity of the survivor or by revealing humiliating details of cross-examination, must be held to account.
The Goa government has already appealed against Tejpal’s acquittal and as of June 2, 2021, the High Court of Bombay at Goa accepted that there is a “prima facie case” for appeal. A further critique of the trial court’s judgement is inevitable during the appeal proceedings.
It is necessary, nevertheless, to continue the discussion in the public realm too, to emphasise that large passages in the judgement are both illegal and unethical, and to outline a way forward involving the adoption of global practices such as an end to digital strip searches of sexual assault survivors, gender sensitisation of investigating officials and judges, and awareness building about gender and law among the media and general public.
Without such processes, the language and errors in the trial court’s judgement in the Tarun Tejpal case will have a chilling effect on women and may deter survivors from accessing legal services and courts in future.
Endnotes
[1]Tejpal case: Goa court cites chats, photos, puts question marks on woman’
[2]‘High Court bars irrelevant questioning of victim in Tejpal case’ https://www.hindustantimes.com/india-news/high-court-bars-irrelevant-questioning-of-victim-in-tejpal-case/story-hPKJe1i5IwW3Oct569MqHI.html
[3]https://indiankanoon.org/doc/1092711/
[4]https://indianexpress.com/article/india/tarun-tejpal-charged-with-rape-a-timeline-of-ex-tehelka-magazine-editors-case-so-far-4865460/
[6]https://indiankanoon.org/doc/1586025/
[7]https://www.news18.com/news/india/the-complete-email-trail-of-the-tarun-tejpal-sexual-assault-case-653191.html
[8]https://indianexpress.com/article/india/india-others/tehelka-case-read-tarun-tejpals-letter-to-the-victim/
[9]https://thewire.in/law/tarun-tejpal-and-curious-case-of-the-coerced-confession
[10]Ibid.
[11]https://www.theleaflet.in/the-tarun-tejpal-judgment-was-required-to-answer-two-simple-questions-but-failed-to-do-so/
[12]https://www.news18.com/news/india/the-complete-email-trail-of-the-tarun-tejpal-sexual-assault-case-653191.html
[13]https://thewire.in/law/tarun-tejpal-and-curious-case-of-the-coerced-confession
[14]https://www.barandbench.com/news/litigation/solicitor-general-tushar-mehta-tarun-tejpal-acquittal-bombay-high-court-indira-jaising
[15]Section 53A in the Indian Evidence Act, 1872 https://www.indianlawsinfo.com/home/section/2074/section-53a-in-indian-evidence-act-1872/evidence-of-character-or-previous-sexual-experience-not-relevant-in-certain-cases
[16]Section 146 in the Indian Evidence Act, 1872 https://indiankanoon.org/doc/130551/
[17]‘Court Orders Tehelka Former Editor Tarun Tejpal’s In-Camera Trial For Sexual Assault’ https://www.ndtv.com/india-news/court-orders-tehelka-former-editor-tarun-tejpals-in-camera-trial-for-sexual-assault-1713278
[18]https://www.hindustantimes.com/india-news/high-court-bars-irrelevant-questioning-of-victim-in-tejpal-case/story-hPKJe1i5IwW3Oct569MqHI.html
[19]Petition number 4156 of 2019 in the High Court of Bombay at Goa
[20]“Towards Victim Friendly Responses and Procedures for Proesecuting Rape” https://doj.gov.in/sites/
[21]Section 228A in Indian Penal Code on Disclosure of identity of the victim of certain offences https://indiankanoon.org/doc/1696350/
[22]Supreme Court Guidelines on Disclosing Identity of Rape Victims https://www.pathlegal.in/Supreme-Court-Guidelines-on-Disclosing-Identity-of-Rape-Vict-blog-2377040
[23]https://indianexpress.com/article/india/tarun-tejpal-verdict-astonishing-erroneous-says-goa-seeks-early-appeal-hearing-7333400/
[24] https://indianexpress.com/article/india/hc-suspends-bailable-warrant-against-tarun-tejpal-rape-victim-by-trial-court-6589844/
[25]CRLMP 15012/2015 in petition for Special Leave in Supreme Court of India to Appeal no. 66/2015(Arising out of impugned final judgement and order dated 23/12/2014 in SC No. 10/2014 passed by Additional Sessions judge, Mapusa
[26]https://www.thenewsminute.com/article/sc-rejects-dileep-s-plea-copy-visuals-malayalam-actor-sexual-assault-113143
[27]https://www.theguardian.com/uk-news/2020/jun/18/police-in-england-and-wales-taking-excessive-personal-data-from-mobile-phones
[28]https://www.globalcitizen.org/en/content/uk-police-rape-victims-private-data-search/
[29]https://www.thetimes.co.uk/article/alleged-rape-victims-will-no-longer-face-digital-strip-searches-by-police-3sq6x6bp8
[30]https://kafila.online/2013/11/29/former-tehelka-journalist-speaks-out/
[31]http://www.nitc.ac.in/app/webroot/img/upload/546896605.pdf
[32] https://www.ndtv.com/india-news/tarun-tejpal-had-totally-different-version-tehelkas-shoma-chaudhury-542014
[33] https://www.outlookindia.com/newswire/story/tejpals-resignation-more-than-what-journo-asked-for-tehelka/818064
Courtesy Nwmindia.org
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