Tejpal case: Stereotypes trumped law

On 21 May 2021, the court of the Additional Sessions Judge, Mapusa, acquitted journalist Tarun Tejpal after a long drawn trial. Tejpal, the former editor-in-chief of Tehelka was accused of raping and molesting his employee at a hotel on the 7th and 8th of November, 2013. The victim alleged that Tejpal raped her on the7th and attempted to rape her again on the 8th. Both the incidents were alleged to have occurred inside the hotel's elevators. The police had filed a chargesheet against Tejpal but the court acquitted Tejpal after faulting the investigation and disbelieving the victim's testimony.

While Tejpal could be innocent, the manner in which the court arrived at its decision is deeply problematic. The judgment is premised on stereotypes and riddled with errors. One of the most problematic features of the case is that the judge ignored the law on a rape victim's privacy and character. Over the past few decades, the law has been amended and interpreted to prevent the victim's sexual history and character from being relevant in rape trials. For instance, Section 53A of the Indian Evidence Act stipulates that the victim's character and previous sexual experience with any person shall not be relevant to ascertain whether the sexual encounter was consensual or not. Also, Section 146 of the Act stipulates that a victim shall not be questioned on her 'immoral character' during her cross-examination. The Supreme Court has repeatedly cautioned trial courts not to cast aspersions on the victim's character and morals.

These directions have been blatantly violated. For instance, the judge has reproduced the victim's private messages and WhatsApp conversations and opined that "it was entirely the norm for the prosecutrix to have flirtatious and sexual conversations with friends and acquaintances". Relying on this and the victim's admission that in the past, she has had such conversations with Tejpal, the judge concluded that they had a 'flirtatious conversation' on the night of the alleged rape. Reproducing extremely personal WhatsApp messages in a public document like a judgment is an egregious breach of the right to privacy, especially when they are not relevant for the case. Furthermore, the judge disclosed the victim's email address, her mother's name and her husband's name, and thereby indirectly disclosed the victim's identity. This violates Section 228A of the IPC and the directions of the Supreme Court which prohibit the disclosure of the rape victim's identity.

Another disturbing aspect is the onerous expectations from a victim of sexual assault. The language and tone of the judgment make it seem as if it was the victim who was on trial. It is a settled position of law that minor contradictions in a victim's statements are not grounds to disbelieve her. However, trivial contradictions in her statements to the court, the police and her employers have been heavily cited to discredit her version of events. For instance, the judge highlighted the fact that she initially claimed to have 'picked up' her undergarment after the incident but later stated that she 'pulled it up'. The judge went on to record that "such glaring contradictions cannot be expected from an educated journalist". The judge also seems to have expected her to remember the time taken by the elevator to arrive at different floors and the buttons pressed by Tejpal during the sexual assault. The judge also attached importance to the fact that she did not forcefully resist Tejpal's advances despite being a fit woman and a yoga trainer.

Strangely, the judge suspected the victim of 'doctoring' the events merely because she consulted eminent lawyers and the National Commission for Women before complaining to the police and recording her statement before the Magistrate. The right to seek legal aid is a fundamental right and it is quite natural for victims to consult lawyers before initiating proceedings. This being the case, it is perplexing why the judge was suspicious of the conversations between the victim and her lawyers.

Judgments like this have ramifications on society as a whole. It signals to victims of sexual assault that they ought to be prepared to relive the trauma during the trial and that they run the risk of getting their privacy violated. Furthermore, if courts expect victims to be sterling witnesses who remember minute details when cross-examined after half a decade, the victims may lose faith in the criminal justice system and not report crimes. Judges ought to be gender-sensitised periodically and also be held accountable for blatantly ignoring the mandate of the law. Justice dispensation based on stereotypes and personal beliefs has no place in a civilized legal system.

(The writer is a lawyer and holds an LLM in Law & Development from Azim Premji University)