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Thursday, June 17, 2021

Tarun Tejpal judgment: Putting the survivor on trial

How a judgment fails Bhanwari Devi and countless other survivors of sexual violence whose experiences brought significant changes to laws and precipitated a social norm change in India.


Updated: June 3, 2021 7:48:04 pm

Written by Salina Wilson

In 1992, men from dominant castes brutally gang raped Bhanwari Devi for preventing a child marriage in their family as part of her work. The apathy with which law enforcement and the district court treated Bhanwari’s case led to widespread outrage and women’s groups came together to file a Public Interest Litigation (PIL) to assert women’s right to safety at work. In 1997, the Supreme Court, in its landmark judgment in Vishaka and ors. vs. State of Rajasthan, laid down guidelines affirming the fundamental right to equality, to life and the right against discrimination for working women.

Fifteen years after the Vishaka guidelines were laid down, in October 2012, the Supreme Court of India in Medha Kotwal Lele and ors. Vs. Union of India recognised that the woman has reasonable grounds to believe that her objection could disadvantage her at work or create a hostile work environment. It outlined preventative steps that employers need to take and if the nature of sexual harassment amounts to an offence under the Indian Penal Code (IPC). This order emphasised that the criminal proceedings must ensure that victims or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 drew attention to the circumstances surrounding sexual harassment where the survivor may be promised preferential treatment or alternately, threatened with deferential treatment and/or loss of employment, or be subjected to humiliating or a hostile work environment. These circumstances make sexual harassment at work a complex issue, bringing in the factors affecting consent as it directly impacts the livelihood and work environment for the person being subjected to harassment. This complexity helps elucidate why we need to stop looking for bruises and body marks to establish that a sexual act was non-consensual and unwelcome. This is precisely why we need to critically examine the norms that governed the thinking of the court in the Tejpal case. The court failed to acknowledge the influential and powerful role played by Tarun Tejpal, then Editor-in-Chief of Tehelka, and his institutional responsibility to ensure a safe work environment for everyone who works there. Instead, it chose to look at minute details of the survivor’s statement with a lens of suspicion and disbelief.

In the aftermath of the 2012 Delhi gang rape, amendments were made to the criminal law in 2013. These amendments brought under the ambit of the Indian Penal Code (IPC), normalised forms of violence like “sexual harassment” “stalking” and “voyeurism”, criminalising which, is an important step in understanding its serious ramifications to the health and wellbeing for women. It is also a recognition that while more aggravated forms of sexual violence are criminalised by law, those considered less serious need to be criminalised to deter gender-based violence of any magnitude and form, thereby promoting women’s safety so that they are able to exercise their rights and realise their full potential.

A significant amendment made to the Indian Evidence Act of 1872, stated that for cases of sexual harassment (Section 354 of IPC) and rape (Section 376 of IPC) where the question of consent is an issue, “evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent”. This amendment would necessitate a transformational change in how survivors are treated in court emphasising the need to stop re-victimisation during cross-examination. In the Tejpal judgment, however, it is the survivor who is put on trial. Irrelevant details of her sexual history were brought on record and attention was given to minor inconsistencies to render the survivor’s allegations untruthful. The judgment further suggested that the witness should be “in a position to withstand the cross-examination of any length” and “under no circumstances should give room for any doubt” that showed a complete lack of empathy towards the survivor. It also pointed out that her shock and trauma from the incident is not supported by the CCTV footage. The delay in lodging the First Information Report (FIR) and the police not ensuring a medical examination were used as the reasons to suspect the evidence of the woman’s statement. That she contacted lawyers and the Women’s Commission was weaponised against her. The Tarun Tejpal judgment thus single-handedly reversed any progress made through Supreme Court judgments, recommendations of the Justice Verma Committee and the Criminal Law Amendments in 2013.

The historic judgment by the trial court that acquitted Priya Ramani in the criminal defamation case filed by her former boss, editor-turned politician M J Akbar for accusing him of sexual harassment, stands in sharp contrast to the Tejpal judgment. Judge Ravindra Kumar Pandey sensitively observed that “it cannot be ignored that most of the time, the offence of sexual harassment and sexual abuse [is] committed [behind] close doors or privately” and that “the woman cannot be punished for raising [her] voice” as the “right of reputation cannot be protected at the cost of the right of life and dignity of a woman”. He recognised that “the woman has a right to put her grievance at any platform of her choice, even after decades”. Priya Ramani’s statement upon her acquittal, lamenting that despite being a victim of sexual harassment, she had to stand in the Court as the accused, is testament to the victim-blaming culture that survivors are subjected to when they decide to speak up. That she felt vindicated by the judgment was a victory and encouragement for countless other survivors who were either not heard or believed.

There is a need to problematise our imagination of what a survivor should look or sound like and question the due processes that set survivors up for failure giving the benefit of the doubt only to the powerful. We were enraged when the Delhi gang rape of December 2012 happened and we marched in protests across the country to place accountability on the state and law enforcement. We have the opportunity to stand by this young journalist in her fight for justice; let us not fail in our civic duty to do so.

The writer is a women’s rights activist from India currently working in the Canadian development sector. Views expressed in this article are personal.

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