Rape convictions are so uncommon in India that the recent Bombay High Court verdict in the Tarun Tejpal case – setting aside the veteran journalist’s 2021 acquittal by a trial court – should be a moment of relief. It is. But any positive emotion women may feel right now is diluted by the continuing efforts of Tejpal’s influential supporters to keep the survivor on trial in the public discourse.
In November 2013, a journalist with Tehelka magazine made a confidential complaint to the then managing editor Shoma Chaudhury that Tejpal, the editor-in-chief and owner, had sexually assaulted her on two successive days in a hotel lift in Goa earlier that month. They were there for a conference organised by Tehelka, where she was assigned to chaperone the star guest, Robert De Niro. When news of the assault became public, a storm broke out, with activists demanding justice for the woman, and the National Commission for Women writing to the Goa Police asking them to act. The police took suo moto cognisance of media reports and leaks on social media, and an FIR was registered. Tejpal was later formally charged with rape and related offences. In 2021, the Additional Sessions Judge at Mapusa, Goa, acquitted him.
The 527-page judgement of the trial court placed the survivor under a merciless microscope, viewing her every smile, gesture, memory and memory lapse with suspicion and through a conservative, moralistic lens. On an appeal by the State of Goa, a division bench of the Bombay High Court at Goa overturned that verdict this August, describing the lower court’s findings as “directly contrary to the evidence on record” and “perverse” – an apt description for a judgement that put the survivor on trial instead of Tejpal, shamed her for defying stereotypes of a traumatised woman, referenced her sexual history in violation of The Indian Evidence Act (IEA) and often defied logic.
This extract encapsulates the spirit of the trial court judgement:
…if she was not in a conversation with the accused and her mouth was not open…would it be possible for the accused to pry her mouth open to insert his tongue into her mouth? If the prosecutrix had held her jaw firmly closed how it would be possible for the accused to put his tongue into her mouth. (sic)
The High Court has sentenced Tejpal to 10 years rigorous imprisonment, the mandatory minimum for his crime. Tejpal has challenged his conviction in the Supreme Court, but has been directed by the court to surrender before his appeal will be heard. Meanwhile, the Goa government is asking for the sentence to be enhanced to life imprisonment.
In the midst of these legal wranglings, the campaign by Tejpal’s supporters in the court of public opinion has gone into overdrive.
The Tejpal alliance
Apart from his family, Tejpal primarily draws his support from a boys’ club belonging to India’s socio-economic elite and their women enablers. The arguments of this Tejpal Alliance against the conviction echo two alternative theories disseminated since 2013. The basis of these theories is that BJP was running the government in Goa when the police first took up the case, and has remained in power in the state, the party came to power at the Centre too in 2014, and the BJP ecosystem, including some leaders, have displayed an enthusiasm for this case they otherwise never show for women’s rights.
THEORY 1: The BJP framed an innocent man because his journalism had damaged them.
This claim implies that the survivor is a BJP plant, which is laughable because her journalism is the anti-thesis of BJP’s values.
THEORY 2: His actions did not amount to rape, but the BJP made it a rape case as revenge for his journalism.
This claim suggests that Tejpal’s supporters, knowing what he did, are uncomfortable with his actions being characterised as rape. Their discomfort and disdain cannot do away with the reality that in the aftermath of the 2012 Delhi bus gangrape, the legal definition of rape was expanded by The Criminal Law (Amendment) Act, 2013, to include non-consensual non-penile penetration, or what is commonly known as “digital rape”.
Both theories have been intermittently aired in public while ceaselessly transmitted through whisper networks aiming to influence journalists and other public figures who in turn might influence public opinion. They divert attention from inconvenient, unassailable facts that the whisperers casually ignore.
INCONVENIENT FACT #1: The survivor has not once deviated from her account of the fundamentals of the assault.
Tejpal’s supporters have been emphasising her slip-ups in recounting extraneous matters, such as whether the lift was moving or stationary during the assault. Such minor inconsistencies are natural for any human being even in normal circumstances, more so for a survivor recalling a traumatic episode.
Their goal here is to take the focus away from her unwavering description of what the man did to her body, in addition to the chain of events before and after the assault. She stuck to her word in these matters in spite of what the High Court describes as “an invasive, humiliating cross-examination” in the trial court into her “sexual history, moral views, and personal WhatsApp messages, directly violating statutory embargoes under the IEA that prohibit questioning a victim’s character or past relationships”.
The High Court states that “despite nearly 1,000 pages of invasive questions designed to shake her”, the survivor remained “consistent and steadfast, with no contradictions in her account”.
INCONVENIENT FACT #2: Tejpal apologised. Thrice. In writing.
The survivor mailed her complaint to Shoma Chaudhury on November 18, 2013.
On November 19, Tejpal mailed the survivor an “informal” apology in which he said he was “sorry at the immense distress that’s been caused to you by my lapse of judgment”, calling it “the encounter” that he claimed took place in a “frivolous, laughing mood”.
Minutes later he mailed her a “formal apology”, which included these words: “I apologise unconditionally for the 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.”
On November 20, a mail from Tejpal to Chaudhury was forwarded by Chaudhury to the entire Tehelka office. In this he wrote: “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, but I feel impelled to atone further.” He then heaped praise on himself and the magazine, adding: “I must do the penance that lacerates me. I am therefore offering to recuse myself from the editorship of Tehelka, and from the Tehelka office, for the next six months.”
During the trial, however, Tejpal’s defence was that the survivor had misrepresented “drunken banter” as an assault.
This raises basic questions:
If there was no assault, what was he apologising for in his mails?
Why did he describe “drunken banter” as an “encounter” in his mail?
Why did he describe “drunken banter” as an attempt at a “sexual liaison” met with “clear reluctance” from the woman?
Re-traumatised yet consistent
Tejpal’s explanation has been that he was pressured into sending those mails by Chaudhury, his sister and business partner Neena Tejpal Sharma, and the survivor. It boggles the mind that a wealthy, powerful, then 50-year-old man claims to have been coerced into apologising by his 20-something female employee – that too for a crime he insists he did not commit. The trial court believed him. The High Court said: “No person of reasonable prudence would apologise falsely for such an incident, especially someone like him.”
The High Court concluded that Tejpal’s mails “acknowledged the sexual assault…albeit calling it a “sexual liaison”.” The judges also noted that Chaudhury, in her statement before a magistrate, said that when she confronted Tejpal with the survivor’s complaint, he said there had been a consensual sexual encounter. In contrast to her statement and his apology mail in which he acknowledged the survivor’s “clear reluctance”, the judges noted that Tejpal’s defence during the trial was not hinged on consent but on denying that the incidents occurred at all. The survivor, however, has remained consistent: her stand from Day 1 till date has been that she never consented to a “sexual liaison”. The High Court deemed her testimony credible – “one that inspires confidence in the Court”.
INCONVENIENT FACT #3: Those who ascribe the High Court conviction to the BJP sidestep the detail that BJP was in government in Goa and at the Centre when the survivor was traumatised during cross-examination in the trial court and when Tejpal was acquitted by that court.
This selective claim of persecution by BJP is illustrated by the internationally renowned documentary filmmaker Anand Patwardhan’s comment on Facebook attributing Tejpal’s trial court acquittal to “no conclusive evidence of rape”, while the conviction by the High Court “is no surprise either,” he added, “for increasingly BJP gets what it wants from our courts.”
Since Patwardhan is acclaimed for his human-rights-oriented films, Left liberals expressed disappointment at this betrayal of women’s concerns that is at odds with his life-long commitment to justice. Ironically, the right-wing dubbed it a gesture of solidarity towards a fellow Leftist/Communist/liberal (terms that in India are too often used loosely and interchangeably to denote anyone critical of BJP) and an act of hypocrisy typical of the Left.
The BJP-led establishment may be fuelled by antagonism towards Tejpal, but the motivations of the party in power can’t be a shield for those who oppose its oppressive ideology while being oppressors themselves. Centering BJP in discussions about this case automatically de-centers justice for the survivor. In doing so, those like Patwardhan who do not outrightly accuse her of lying, obliquely bolster the arguments of Tejpal supporters who do.
The “perfect victim” myth
There was no camera inside the lift where the crime was committed. The footage presented at the trial showed Tejpal and the survivor entering and exiting the lift. It is confidential material that, after being collected from the hotel by the police, has been made legally available only to select individuals involved in the investigation and trials.
Nevertheless, as early as 2014, commentary about this footage – all favourable to Tejpal – began surfacing on social media and in news media. The filmmaker Anurag Kashyap, for instance, wrote on Facebook: “And I have seen the CCTV footage too and none of what the girl says about Tarun Tejpal is true.”
In 2016, when I asked Kashyap about this in an interview, he replied: “I saw the footage and the body language throughout, there’s not a single ounce of tension. If I’m trying to force myself on a person in an elevator and the door opens, you know there’s this kind of protest. But they’re both together on one side, the way they walk out, the way they both look. Or the way they both go into the elevator.”
Kashyap could not explain how he expected a powerful man’s subordinate to reveal her tension with him in public right after an assault. Like Patwardhan now, Kashyap in 2016 would not disclose who showed him the footage. Tejpal’s daughter Tiya was the production designer on his film Raman Raghav 2.0 released that year, but he denied a friendship with her.
In 2018, Times Now aired the footage in two shows anchored by Rahul Shivshankar and Navika Kumar respectively that, while purporting to expose Tejpal, interrogated the survivor instead. These shows violated Section 327(2) and (3) of the Code of Criminal Procedure (CrPC), which provide for rape trials to be held in-camera and prohibit publication of “any matter in relation to any such proceedings…except with the previous permission of the court”.
(Aside: both these journalists are openly pro-BJP, which negates the right-wing’s claim that Tejpal’s supporters are a “Leftists’ cabal”. In truth, when it comes to sexual violence, class solidarity overrides ideological divides.)
The assessment that the survivor’s body language outside the lift did not indicate that she was raped inside it shows limited understanding of human psychology. A survivor entering a public space after an assault is processing what occurred while trying to maintain her dignity. In this case, the woman testified that she was also afraid of losing her job if she left the venue, she feared Tejpal had the means to ruin her career, and she was devastated at being assaulted by a mentor who was her then friend Tiya’s father and her own father’s ex-colleague.
Like Tejpal’s supporters, the trial court too cited numerous irrelevant factors to discredit the survivor: she was photographed with a glass of wine in hand after the incident, she looked cheerful on a beach with De Niro and his daughter, and so on.
The High Court denounced this quest for a “perfect victim” – “an unspoken cultural archetype where a person is fully believed, sympathised with and granted legitimacy only if they exhibit absolute vulnerability, complete innocence and total passivity... Expecting a survivor to be constantly miserable, meek or visibly broken, the Trial Court has ignored the reality of human coping mechanisms.”
A rape survivor’s knowledge is like her clothes
After the survivor’s initial complaint became public knowledge in 2013, BJP’s Arun Jaitley pointed out, on his blog, that Tejpal’s actions as narrated in her mail amounted to rape, and not just molestation, under the amendments passed by Parliament that year.
Tejpal’s supporters cite the fact that the survivor did not use the accurate legal term for the assault as reason to doubt her. They argue that her reporting on violence against women should have familiarised her with the amended laws. In essence, they expected a young journalist to know as much as Jaitley, a practising lawyer for nearly four decades.
Conversely, the knowledge her profession did give her, including the good sense to consult a lawyer and friends before filing her complaint, were held against her at trial.
It turns out a rape survivor’s knowledge levels are like her clothes: never the precise quantum that is beyond condemnation.
INCONVENIENT FACT #4: The paradox here is that Jaitley’s and BJP’s zeal for this case is cited by Tejpal’s supporters to encourage scepticism over his conviction among the liberal public which, by extension, encourages scepticism about the survivor, when instead, she deserves solidarity as she continues to suffer the fallout of Jaitley’s utterly condemnable insensitivity towards her.
The late lawyer-politician was so engrossed in petty one-upmanship over the Congress, which was then in government at the Centre, that he was indifferent to the possibility of a survivor not wanting to file a police complaint in order to avoid being re-traumatised by the legal process. Indeed, in her complaint to Chaudhury, the survivor had these demands: a written apology, an acknowledgement of the assault to be circulated in the organisation, and an inquiry as per the Vishaka Guidelines. She did not want to approach the police.
The Vishaka Guidelines formulated by the Supreme Court in 1997 were the foundation for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also known as the Prevention of Sexual Harassment (POSH) Act. This Act was notified in the Official Gazette in April 2013, but since the government notified the Rules for its implementation only in December, the Vishaka Guidelines were still in operation when the survivor complained against Tejpal in November.
Days after receiving the complaint, Chaudhury announced that Tehelka had constituted a Vishaka committee to probe it, and would additionally “ensure setting up” a committee according to the POSH Act. But the Vishaka Guidelines and POSH Act require/d workplaces to have a complaints committee in place at all times, not if/when complaints arise. Tehelka was thus in violation of both, which was ironic since it had been a crusader for marginalised social groups including women.
A POSH-compliant Tehelka would have had a complaints committee in place, thus giving the survivor the option to complain directly to the committee, which would have afforded her the protections mandated by the POSH Act. Section 19(g) of the Act requires employers to assist the woman “if she so chooses” to file a police complaint. Section 16 guarantees confidentiality. And Section 27(1) stipulates: “No court shall take cognizance of any offence punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee…in this behalf.”
The delayed committee formation in Tehelka and leaks of internal communication created circumstances that led to the Goa Police acting on the leaked mails since rape is a cognisable offence. The woman was thus robbed of the agency that the POSH Act gives survivors.
Days before Tejpal’s conviction, a Delhi court acquitted Brij Bhushan Sharan Singh, the BJP’s six-term ex-MP and Wrestling Federation of India ex-president, on sexual harassment charges brought by multiple women. In 2023, international medal-winning wrestlers faced police aggression when they were forced to publicly protest for months about complaints against Singh being ignored. The Supreme Court had to intervene just to ensure registration of FIRs. Meanwhile, Singh’s clout within BJP remains undiminished. The party’s attitude to his case is offered as proof that Tejpal is a victim of political vendetta. But an assault survivor is not responsible for a ruling party selectively prioritising her legitimate complaint. Evaluations of the High Court judgement must be conducted purely on its merits.
About that lift and CCTV footage
After the High Court ruling, articles by Tejpal’s family and ostensibly detached observers along with supporters on social media have begun building a narrative that the fulcrum of the prosecution’s case was the functioning of the lift. Untrue.
INCONVENIENT FACT #5: The fulcrum of the prosecution’s case was the survivor’s account of the assault per se, combined with Tejpal’s apologies. The lift’s operation and the survivor’s account of it were only supporting material, contrary to what Tejpal’s supporters would have us believe.
According to Section 114A of the Indian Evidence Act, in the matter of rape punishable under Section 376(2)(f) and (k) of the Indian Penal Code – that is, rape by a person “in a position of trust or authority” over a woman or “in a position of control or dominance” – if the question is whether the woman alleged to have been raped had given her consent, “and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent”.
In the Tehelka case, the High Court determined that the survivor’s testimony “qualifies the test of high quality and calibre” and did not require further corroboration. All the same, the court noted that her version of events was corroborated by other witnesses with whom she had shared details of the assaults right after they occurred. Her testimony was further substantiated by Tejpal’s apology mails, in addition to the CCTV footage.
Since the High Court’s interpretation of the CCTV footage and relevant testimonies are being misrepresented, let’s revisit them.
The survivor said that on November 7, 2013, Tejpal asked her to accompany him to De Niro’s hotel room, and attacked her as they rode up in the lift. In her initial complaint, she said the lift did not open while the assault was underway and Tejpal pressed buttons to keep it “in circuit”. She was crucified by the defence over this element in her complaint.
INCONVENIENT FACT #6: Tejpal’s supporters are selectively highlighting information from the trial court judgement to suggest that there was a consensus among witnesses regarding the lift’s functioning, and that the consensus contradicted the survivor. False.
While it is true some witnesses testified that it was not possible to keep the lift shut and either stationary or moving without stopping at any floor in the time that the rape was said to have occurred, it is just as true that some witnesses contradicted this claim. The latter referred to an emergency red button in the lift that, quite notably, according to a number of witnesses, was deactivated in all lifts of the hotel after the Tehelka rape.
This was one of the issues over which the survivor was badgered during cross-examination, which required her to remember – seven years after the rape – the exact button Tejpal had pressed on the panel, which hand he used on it, if his thighs were perpendicular to the floor or diagonal, and details too graphic to be reproduced here. She had to clarify in court that her lack of clarity in this regard stemmed from her state of shock because she was in the middle of being assaulted at the time.
It’s absurd and cruel to expect a woman to have a photographic memory of her surroundings during a rape. There’s also a larger point to be made here: sexual assault is the only category of crimes in which the victim is automatically disbelieved by society – the very society that suffocates women with restrictions in the guise of offering protection from male violence. If all/most women are lying about assault, who is society protecting us from?
Tejpal’s supporters are at pains to keep the spotlight on the lift and police inefficiency. For the record, police work on this case was indeed shoddy on several fronts. The issues listed out by the trial court included these: the hotel’s recording room was not immediately sealed when the probe began, the attachment of the hotel’s recorders was delayed, no hash value was generated while attaching them, and the police did not seek a demonstration of the lift’s functioning.
Here’s the thing though: every instance of police inefficiency was spun in favour of Tejpal and against the survivor in the trial court although she had no control over the police.
INCONVENIENT FACT #7: The High Court followed the law in refusing to treat a survivor as intrinsically untrustworthy sans corroborating physical evidence. It found her statements “reliable and consistent” regarding the material facts of the assault and sequence. Seen in this light, the CCTV footage proved to be significant in so far as “it places the victim and the Respondent at the spot of the incident on the date and time testified by her,” the court noted.
INCONVENIENT FACT #8: The High Court also underlined glaring gaps in the defence related to the lift and CCTV footage.
On the night of the first assault, the footage showed Tejpal and the survivor entering the lift on the ground floor, and exiting on the second floor after a while – it was on this ride in the lift that the survivor said he assaulted her. They then descended a staircase from the second floor to the ground floor and exited the building.
During the trial, Tejpal offered a justification for the time that elapsed between them entering the lift on the ground floor and exiting it on the second floor where De Niro’s room was located: his statement was that he and the woman rode up from the ground floor, mistakenly exited on the first floor, walked all the way to the end of the corridor where they thought De Niro’s room was, realised their mistake, and returned to the lift to ride it to the second floor. As noted in the High Court judgement, he contended that “this sequence of events spanned over two minutes, leaving no opportunity for the alleged sexual assault”. He further contended that the police’s failure to procure the footage of the first floor, which has since been untraceable, thus hampered his defence.
This is now being held up as a trump card by Tejpal’s supporters to proclaim his innocence. But they are holding back two pieces of crucial information in this context.
First, if this justification by Tejpal is to be believed, then it defies explanation that, as the High Court has noted, “There is nothing on record to indicate any efforts made by the Respondent” (that is, Tejpal) “to seek any orders from the trial Court or this Court regarding the first-floor CCTV footage.”
Second, the High Court further noted that even if Tejpal’s story “that they mistakenly exited the lift on the first floor and went again to the second floor to give some message to Mr De Niro is presumed to be true, there is no explanation as to why, upon exiting the lift on the second floor, they straightaway descended by the staircase without even attempting to go to Mr De Niro’s suite.”
These and other inconvenient facts are being sidestepped by The Tejpal Alliance – in WhatsApp groups, on social media, at social gatherings and elsewhere – as they demand a discussion solely on “the facts of the case”.
INCONVENIENT FACT #9: Facts include inconvenient facts.
Anna MM Vetticad is an award-winning journalist and author of The Adventures of an Intrepid Film Critic. She specialises in the intersection of cinema with feminist and other socio-political concerns. You can reach her on Twitter: @annavetticad, Instagram: @annammvetticad, and Facebook: AnnaMMVetticadOfficial.