In this piece, Sithara Sarangan, an advocate in the Madras High Court, writes how the Goa court’s Tejpal judgment undoes what the judiciary has been attempting to eliminate consciously over the last few decades.

Tarun TejpalPTI
Voices Opinion Wednesday, June 02, 2021 - 18:10
Written by  Sithara Sarangan

The recent verdict by the sessions court in Mapusa, Goa, on the Tarun Tejpal rape and sexual assault case 2013, has resulted in an outrage amongst the public and the legal fraternity, for legitimate reasons. On skimming through the elaborate 527-page judgment, one understands how the language of the verdict can have a detrimental effect on gender justice and women’s rights since it consistently reinforces the notion of shaming a survivor of sexual assault and discouraging them from knocking on the doors of justice. Not only does the judgment display lack of sensitivity and empathy, but it also heavily undermines the credibility of survivors of sexual abuse by evaluating the testimony of the prosecutrix for a staggering 400 pages. The order further displays dangerous trends of victim-shaming, which the judiciary has been attempting to eliminate consciously over the last few decades.

Instances of victim shaming

The verdict follows the incident which took place in 2013 whereby Tejpal’s colleague, a young woman had alleged that he sexually assaulted her in a five-star hotel in Goa, by forcing himself onto her in a lift. In the court’s decision which was placed in public domain last week, the bench made several irrelevant observations about the survivor’s past activities and character holding, “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 (yoga trainer) would not push or ward off the accused if she got pushed against the wall.” The court’s vilification of the survivor has resulted in overlooking certain important legal premises such as section 354 A Indian Penal Code 1860, which seeks to establish that 'sexually coloured remarks' are sufficient to regard the accused guilty of sexual harassment (attracting due punishment).

During the course of the order, Justice Kshama Joshi makes repeated references to the prosecutrix (the survivor) and the precautions she ought to have taken to prevent the crime, by completely overlooking the context of the apology made by the accused. Further, while acquitting the accused the judgment proceeds to shame the survivor, making the following 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 important principles of criminal law, thereby shifting the onus of proof entirely on the survivor as opposed to the accused.

Also read: ‘She didn’t look traumatised’: Goa court’s Tejpal order is ‘good victim’ drivel

The court also seems to have based its reasoning on the trivial contention that there was a delay in filing the FIR, when in fact numerous decisions such as State of Rajasthan vs Om Prakash have reiterated that a delay in filing an FIR is not fatal to the case of the prosecutrix and that it cannot be the sole reason for the acquittal of the accused. In an attempt to determine the veracity of claims made by the prosecutrix, the court severely breached the survivor’s privacy under Article 21 of the Constitution by making her personal data and WhatsApp chats public. In this context, the ruling proves largely inconsistent with the Puttuswamy verdict in 2017 which upheld the principle that "Privacy is the ultimate expression of the sanctity of the individual." The court has also overlooked the premise of Section 228 A which clearly states the disclosure of the identity of survivors in certain cases becomes a punishable offence.

Resonance of the “Me too” movement

In the wake of the Me Too movement, there has been a conscious shift in the court's jurisprudence — as seen in Priya Ramani v. MJ Akbar, wherein the judge actively recognised the survivor’s right to approach the court even after the lapse of a decade, in matters of sexual abuse. The decision was progressive for many reasons, primarily since it chose to address the mental trauma that survivors face under such circumstances, giving them sufficient time in approaching the court. In comparing the two decisions, it is seen that the tests imposed by both courts to decide crimes of similar nature are drastically different, thus revealing the inconsistent approach taken by courts in matters of sexual crimes.

Defining the contour of consent

While courts have time and again grappled with the idea and contours of ‘consent,’ the credibility of the prosecutrix in sexual harassment cases are often undermined by giving effect to groundless character assassinations of the survivor. In doing so, the language used by the defence and the bench, in particular, have traditionally remained largely pejorative towards women. Usage of parlance such as “outraged her modesty”, “woman of easy virtue” which sometimes reflect in statues itself, continue to echo the judiciary’s adoption of the regressive Victorian conception of morality, whereby the court first get to sit on the virtue and morality of a woman (survivor) before deciding if she is deserving of justice. The Tejpal decision also reinforces these regressive misogynistic values holding that the survivor had indulged in ‘flirtatious behaviour’ in the past and that it would therefore mean that she is not eligible to be a survivor of sexual violence. As it is, the ruling fails to take into consideration section 53 A of the Indian Evidence Act 1872, which states that “Evidence of character (of the survivor) or previous sexual experience not relevant in certain cases” (For example, offences punishable under section 354 and section 376 IPC). Even assuming that the survivor's past behaviour is taken into account, the decision directly contradicts the Supreme Court decision in Jai Bhagwan v. State (Government of NCT Delhi) 2018, whereby the court upheld the survivor’s right to consent while insulating it from her morality. A bench consisting of Justice Bhanumathi and Justice Indira Banerjee, while ruling on a gang rape against a sex worker, had grappled with the discourse of morality holding that sex-workers also have the right to consent and that they “do not have to submit themselves to sexual intercourse to anyone.” 

 The Tejpal judgment also proves problematic since it retracts the apex court’s decision in the Aparna Bhat case made earlier this year, whereby the court laid down detailed guidelines to be followed by the judiciary in deciding matters of sexual violence against women. A bench consisting of Justice AM Khanwilkar and S Ravindra Bhat 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 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.

Sexual crimes against minor women

This vilification of female survivors of sexual violence by the justice system is not just a treatment meted out to adult women but trickles down to minor women as well. Earlier this year, the Nagpur Bench of the Bombay High Court became infamous for its controversial ruling on the sexual assault of a minor. In what can only be seen as a display of apathy towards survivors of sexual abuse, the court ruled that the act of the perpetrator did not constitute an offence under the POCSO Act 2012, since there no 'skin to skin contact as the survivor (a minor girl) was groped on her clothes and not under them. Such decisions have been seen as a major setback to gender-sensitive jurisprudence.

Sexual harassment at the workplace

Another reason the Tejpal decision proves important is that it ignores the cardinal issue of the power dynamics in ‘employer-employee relationships’ in sexual harassment cases and the legal consequences thereof. The Vishaka case in 1997, was a monumental verdict since it was the first to actively recognize Art 19(1)(g) of the Constitution and rule against sexual harassment of women at the workplace. In doing so, it introduced the ‘Vishaka guidelines' which materialized into legislation only in 2012, vide the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.  However, despite the enactment of such statutes in furtherance of women's safety, there remains a reluctance amongst women to seek invocation of the same, given the social stigma attached to such complaints. In several instances, access to justice becomes a problem since initiating such a complaint might involve legally taking on a powerful company or an individual who is usually represented by a senior counsel, while the survivor might not always have the privilege to engage a legal representative of the same calibre.

The way forward

In totem, the decision acts anathema to the constitutional promise of gender justice and demonstrates the inconsistent approach undertaken by the Indian judiciary in deciding matters of violence against women. By reducing vile acts of sexual violence to quotidian events that do not mandate the judiciary's time and attention, the court continues turning its back to survivors of sexual violence while incentivizing perpetrators. Going forward, it is crucial that the judiciary pro-actively engages in matters of sexual crimes with increased sensitivity and empathy towards survivors, while insulating itself from illiberal narratives on morality and virtue which are often made in an attempt to shatter the case of the persecution. Courts also have a duty to adequately delve into the subject of ‘consent’ before acquitting an offender in such cases. Additionally, there is a pressing need that the judiciary upholds the privacy of survivors in sexual harassment cases. Until then, regressive jurisprudence as in the Tejpal verdict will mark nothing but the vanishing point of gender justice in the liberal era.

Sithara Sarangan is a practising advocate at Madras High Court.

(Views expressed are author’s own)