On May 21, a trial court in the western Indian state of Goa acquitted Tarun Tejpal, founder and former editor-in-chief of the Tehelka news magazine, of rape charges that were leveled against him almost eight years ago.
Additional Sessions Judge Kshama Joshi’s judgment report has since evoked much outrage in the country, especially among feminists. It lays bare yet again the deep misogyny that defines the outlook of many in India’s criminal justice system, indeed in Indian society.
It underscores why rape survivors are reluctant to go to the police or courts for justice: They end up being put on trial and are often blamed for the rape, for not conducting themselves in a way that would have deterred the rapist.
A high-profile journalist, Tejpal made his name with some of the biggest investigative stories in Indian journalism. In 2013, his junior colleague alleged that he had sexually assaulted her inside the elevator of a five-star hotel on November 7 and 8 during a Tehelka event in Goa. Tejpal was arrested a few days later and spent around seven months in jail before being granted bail. The trial began in 2017 and proceeded in fits and starts.
It is obvious from a reading of the 527-page judgement that Judge Joshi handled the accused with kid gloves even as she hauled the plaintiff over the coals. Joshi gave Tejpal the “benefit of the doubt.”
In an email to the woman a few days after the incident, Tejpal had admitted to the “sexual encounter.” A “shameful lapse of judgement” had led him “to attempt a sexual liaison” with her on two occasions, he wrote in the email. He even admitted that she had made it “clear” that she “did not want such attention” from him.
Tejpal’s email was unambiguous on the fact that “the sexual liaison” did not have her consent, the key factor that makes a sexual encounter a sexual assault. Subsequently, Tejpal claimed that the email was sent “involuntarily and against his wish.” The judge chose to accept his word.
The trial should have focused on whether or not the allegations leveled against Tejpal were true and whether his actions on the two consecutive nights constituted sexual assault under Indian law. It was Tejpal who was supposed to be on trial; the court should have put his character and conduct under the scanner. Instead, the trial was turned into an investigation of the victim, her character and conduct.
The judgment lays out details of the woman’s WhatsApp chats, email messages, past relationships, and social life. Her dress at the time of the incident, its length, and the length of its lining, even the kind of undergarment she wore, are described in the judgment.
That these issues were detailed in the judgment indicates that they were important to Joshi and determined her perception of the plaintiff. In other words, the judge allowed her preconceived notions of the behavior that a rape victim should show to determine her verdict.
In photographs taken after the alleged assault, the woman was “smiling and looked happy, normal, in [a] good mood,” Joshi wrote in her judgment. “She did not look disturbed, reserved, terrified, or traumatized in any way even though this was immediately after she claims to have been sexually assaulted,” Joshi said, going on to assert that that this “completely belies” the prosecution’s case.
While the judge rapped the prosecution’s knuckles for not investigating and building up a solid case against Tejpal, it seems that the plaintiff’s behavior – which Joshi believed to be inappropriate for a sexually assaulted Indian woman – determined her verdict.
In innumerable rape cases, women have been castigated by the courts for what they deem inappropriate behavior or responses to the assault.
In 2016, the Supreme Court remarked that it was “unusual” that an assaulted woman did not “immediately hurry home in a distressed, humiliated, and devastated state.” Instead, she remained at the site of the assault to identify and establish evidence. Drawing on a witness’ testimony that the victim was a sex worker, the apex court said that “she was accustomed to sexual intercourse before the incident also.” The Supreme Court went on to acquit the assailants in that case.
A year ago, a Karnataka High Court judge said that it was “unbecoming of an Indian woman” to fall asleep after she was sexually assaulted. “That is not the way our women react when they are ravished,” Judge Krishna Dixit said on acquitting the accused of rape.
As in the Tejpal case, here too, the woman was perceived to have not behaved the way a “good” Indian woman or a victim should have; hence the judges deemed her testimony to be untrustworthy. It was “difficult to believe” the women’s words, Dixit observed, as the woman failed to appear like a “victim.” The “victim’s explanation that she did not imagine the accused would try to do such a thing is not at all believable,” Joshi said.
At every stage of the criminal justice system, women are blamed and shamed for getting raped. Police, lawyers, judges, and society usually blame the woman for her own rape: by going out at night, for wearing the wrong clothing, they claim that she was “asking for it.”
One of the men who raped “Nirbhaya” on a moving bus in New Delhi in December 2012 told the BBC that “women who go out at night have only themselves to blame in case they attract attention of male molesters.” But it is not just convicts and criminals who blame the victim. Lawmakers do this too.
The West Bengal government accused a gang-rape survivor in Kolkata of fabricating the assault. A Trinamool Congress parliamentarian said that the rape was actually a “sex deal gone wrong.”
Following the public fury over the Nirbhaya gang-rape, India’s rape laws were amended. The Criminal Law (Amendment) Act, 2013 widened the definition of rape. Unwelcome physical contact, words or gestures, or demands for sexual favors are now treated as offenses. The 2013 law put in place procedures that are victim-friendly. Bringing up a woman’s sexual history is forbidden under the law.
Yet Joshi’s court permitted irrelevant and aggressive questions that were not only “insulting and distressing” to the woman but also “illegal.” So humiliating were these questions that the woman went to the Bombay High Court to restrain Tejpal’s lawyers. The court did intervene to forbid Tejpal’s lawyers from asking her “indecent” and “scandalous” questions.
Not only did Joshi permit illegal questioning, but also she detailed the woman’s answers in her judgment. Some of the comments that Joshi made in her judgment blamed the woman. If the plaintiff was “terrified of him [Tejpal] and not in a proper state of mind, why would she report to the accused and disclose to him her location,” she asked. Joshi also questioned the woman’s intentions and thus, blames her.
Clearly, Joshi overlooked the context of the case. The woman’s father was Tejpal’s friend. His daughter was her closest friend when the incident happened. She was a colleague of Tejpal. The judge chose to ignore the power differential that existed at the workplace.
Joshi’s judgment reveals that she has little understanding of the complexities of human behavior and how people respond to assaults differently. Instead of basing her verdict on evidence and hard facts, she was judgmental and allowed her misogynistic prejudices to determine her verdict. Joshi’s remarks about women show the continuing grip of patriarchal views in Indian society, even among so-called educated people, including women.
This is not the end of the road for the woman or Tejpal. Joshi’s verdict is being appealed in the High Court. Even if the High Court overturns the verdict, the terrible damage done by Joshi’s judgment will be hard to undo. The impact of the character assassination that the judge committed in her judgement will be difficult to reverse.
Besides, it will be hard to convince survivors of rape and sexual assault to pursue justice through the courts.