DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

PROJECT TOPIC

SURVIVOR ON TRIAL; CRTITIQUING STATE V

TARUNJIT TEJPAL

SUBMITTED TO: SUBMITTED BY:

DR. SAMREEN HUSSAIN ANCHAL YADAV& JUHI AWASTHI

ASSOCIATE PROFESSOR OF LAW ROLL NO. 26&70

B.A LLB(HONS) , IX SEM

“A woman cannot be herself in the society of the present day, which is an exclusively

masculine society, with laws framed by men and with a judicial system that judges
feminine conduct from a masculine point of view.” Henrik Ibsen (Norwegian
playwright and theatre director quoted by SC )

INTRODUCTION
The above quote is so apt while we read the recent judement pronounced by a District & Sessions Court
at Mapusa, Goa, on May 21, 2021, acquitting journalist Tarun Tejpal, the Editor-in-Chief of Tehelka
magazine, who was charged, in 2013, of the rape, unlawful confinement and sexual harassment of a
young woman journalist working at the magazine.

In what is a new low for cases of sexual assault, the 527-page judgement in State (through CID CB
North Goa) vs Tarunjit Tejpal persistently shames the survivor as though she were the one on trial. The
judgement by Additional Sessions Judge Kshama M. Joshi sets out standards for a “sterling witness” and
the “normative” look of a traumatised woman and attempts to rip into the survivor as she “failed to pass
any of the tests”.

The judgement gives short shrift to consent, the defining factor in sexual assault including rape. In doing
so, it ignores apology emails by Tejpal himself including one in which he acknowledged a “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”. Despite
Tejpal admitting in his email to non-consensual conduct towards the survivor, and despite the survivor‟s
unequivocal testimony that she kept saying “no”, the judgement disregards the vital issue of consent.

During the course of the trial, the survivor had to approach the High Court of Bombay at Goa against the
hostile and humiliating cross-examination in the trial court relating to her personal life. The High Court
in December 2019 ordered the trial court to protect her from such “extraneous and irrelevant
questioning”. Nevertheless, the trial court judgement cites and publishes many of the personal details
extracted from her during the unlawful cross-examination.

Although there are undoubtedly vast differences in age, class, caste, location and context, the victim-
blaming and shaming of the survivor in the Tejpal case is eerily reminiscent of the 1979 verdict in the
Mathura‟ rape case (Tukaram and Another vs State of Maharashtra). In that landmark case, in
complete disregard of the power differential between a minor Adivasi girl in custody versus the
policemen accused of raping her, the accused were acquitted by the Supreme Court, with the
controversial judgement claiming that she was “habituated to sexual intercourse” and concluding that “no
marks of injury” on her body implied consent.

Forty years on, it is appalling to read another judgement that accuses a sexual assault survivor of not
doing enough to protect herself, cites her sexual history and accuses her of not looking sufficiently
devastated, ignoring the guidelines laid down by judgements of the Supreme Court and the Criminal Law
Amendment Act, 2013

OBJECTIVE OF THE STUDY

If this judgment illustrates anything, it is how regressive and stereotypical notions – resulting from
centuries of socio-cultural conditioning which lie buried deep in the collective subconscious – shape the
so-called procedural aspects of the law. A key reason for acquittal in the judgment is that the survivor did
not demonstrate the kind of behaviour that a victim of sexual assault is supposed to show. The judge
writes that the “photos show the prosecutrix to be absolutely cheerful and with a smile on her face and
not disturbed, reserved, terrified or traumatised in any manner.”

Its not something new though. Indian justice system is known for victim blaming and shaming. Through
this paper I would critique the judgement as well try to find out countries with who has best practices in
dealing with rape victims during trial.

RESEARCH METHODOLOGY
The research methodology that I will be undertaking will be doctrinal in nature. I will be going through
legal literature, web sources and making deduction on my topic.

HYPOTHESIS AND RESEARCH QUESTIONS

HYPOTHESIS
After a preliminary reading of the literature, case laws and web sources available on the topic I am
drawing a conclusion that although some legal fraternity and law makers are aware that rape victims trial
must not be a further source for exacerbating their agony rather must act as balm for their wounds but we
often also forget that rape is still a taboo in Indian society and judges are also from the same society.
Hence unless judicial officers are trained exclusively for the trial of sexual harassment victims the
picture is not going to change soon.

RESEARCH QUESTIONS
The project will seek to answer the following questions:

 Where the judge went wrong while shaming the victim?

 Does judiciary need judges trained exclusively to try rape cases?

A SURVIVOR ON TRIAL
The judgement in the Tejpal case is full of repetitive and needless detail. It repeatedly attacks the
survivor in its language (Page 255, Paragraph 154: “prosecutrix is lying”; Page 287, Paragraph
182: “PW1 with typical evasiveness answered”) and its selection of facts, and it reads like a
public trial of the survivor rather than the accused, that too without regard to the legal
requirements of expunging any information or details that can identify her. (Note: The Bombay
High Court at Goa has since, on May 27, 2021, on an appeal by the Goa government, directed
the trial court to redact all references in the judgement that end up disclosing the survivor’s
identity.)

The most striking aspects of the judgement in the Tejpal case are:

(i) That it mirrors the defence arguments

(ii) It simply brushes aside apology emails written by Tejpal himself, including the one in which
he concedes that the survivor had not consented to a sexual encounter with him.

 The judgement dismisses the survivor’s mother, close friends and colleagues as non-
credible witnesses due to their proximity to her, but it readily believes the accused’s
sister, business partners, close friend and employees despite their ties to the accused and
the clout he wields over some of them.

 The judgement defies universal principles of fairness and natural justice and India’s
statute books in its response to the survivor’s call records and messages seeking early
legal advice and support from women lawyers and activists. The judge has deemed all
such communication as evidence of “doctoring” (Page 54, Paragraph 23: “With the help
of experts there may be possibility of doctoring of events or adding of incidents”), thus
undermining her right to access justice. The judgement even insinuates that the survivor’s
knowledge of the law and prior contact with feminist lawyers is part of a grand
conspiracy. This theme runs through the judgement. It implies that the complainant is to
be viewed with suspicion simply because she is knowledgeable about the law and
exercised her fundamental right to consult lawyers before making a formal statement in a
criminal case.
 Having allowed the defence to use material from the survivor’s mobile phone that is
unconnected to the allegation of assault, the judgement then reproduces her messages to
close friends on her mobile phone to portray her as having “flirtatious and sexual
 conversations” and makes retrospective, forced connections between these unrelated
conversations and the assault in question
 The judgement records that during the cross-examination, the survivor did not wish to
share the contents of her email account in court for multiple reasons including privacy
concerns and professional considerations. Regarding the latter, the judge writes that the
survivor pointed out “she has worked as a journalist for the last seven years and her
account is full of sensitive details which could compromise the lives and identities of her
sources and she will not give up that information to anyone including the court”. (Pages
286-288, Paragraph 182) Immediately after the above sentence, the judgement concludes
that the survivor’s unwillingness to show “the email” to the Court shows that she “wants
to hide something” and thus “cannot be called reliable and trustworthy” – the judge does
not specify which among the many objections raised by the survivor prompted this
conclusion. (Pages 288-289, Paragraph 183)

THE PUNISHMENT IN THE PROCESS

The survivor recorded in her application to the High Court of Bombay at Goa in December 2019
that she broke down and was traumatised in the courtroom on being subjected to hostile and
illegal continued cross-examination on her sexual history and even her parents’ sexual history,
and that the defence hectored her while asking her to recollect and confirm private messages
unrelated to the case that were displayed on the court’s computer screen. The survivor’s High
Court application lists the questions asked by the defence to humiliate her and tarnish her
reputation.

The survivor requested the High Court for a physical screen to be placed between her and Tejpal
in court during questioning. Her request was based on an existing legal provision1 that permits a
survivor to record her testimony from behind a screen, a provision designed to protect a survivor
from the anxiety and intimidation generated by physical proximity to the accused – but her
request was denied.

The High Court of Bombay did, however, in its order of December 12, 2019, direct the trial court
to protect the survivor from “irrelevant and extraneous questioning”; it also allowed her to
withhold her name, address and personal details, and to file the required documents in the High
Court in a sealed envelope. But the May 21, 2021 judgement overlooks the High Court ruling
and reproduces large sections of the unlawful cross-examination about the survivor’s personal
life and other irrelevant, illegal questions along with identifying information such as her personal

1
Towards Victim Friendly Responses and Procedures for Prosecuting Rape, A STUDY OF PRE-TRIAL AND
TRIAL STAGES OF RAPE PROSECUTIONS IN DELHI, accessed on October, 19, 2021<
https://doj.gov.in/sites/default/files/PLD%20report.pdf>.
email and details of her family. This is in violation of Section 228A of the Indian Penal Code2, a
punishable offence, which prohibits the printing or publishing of “the name or any matter which
may make known the identity” of a rape survivor, and the Supreme Court’s guidelines 3 issued in
2019 to protect rape complainants’ confidentiality

During the COVID-19 pandemic the survivor requested that she be excused from a physical
appearance in Goa as she was herself unwell and also caring for elderly family members; she
requested that she be allowed to give testimony at Goa Sadan in Delhi, in the presence of an
appropriate authority. Instead, the judge issued warrants against the survivor, her mother and her
spouse on September 4, 2020, against which the survivor had to once again approach the High
Court.

EVIDENCE AND CHARACTER ASSASINATION

The Tejpal case is one of the first prominent cases in India to be tried and prosecuted under the
Criminal Law Amendment Act, 2013, which marked the culmination of decades of struggle by
the country’s women’s rights movement for an expansion of the legal definitions of the acts that
constituted rape and the contexts in which consent is given.

The new law recognised that when a person is “in a position of trust or authority”, he has to be
held to stricter standards than other individuals while determining whether he had secured
consent for a sexual encounter. The reasoning for this is that the power he wields over the
woman could include not just physical force but also a psychological and/or emotional sway in
addition to influence that could affect her earning capacity, ruin her position within her family,
social circle and/or profession and even destroy her professionally if she antagonises him.

In this context it is important to note that Tejpal was a powerful entity in the survivor’s
profession at large and in the organisation that employed her, that she had known him from
childhood as a family friend, as her father’s former colleague and friend, a man she went so far
as to describe as a “paternal figure” in her written complaint to Tehelka.

The vulnerability of her situation was reflected in the IPC sections 376(2)(f) covers a category
of accused who “being a relative, guardian or teacher of, or a person in a position of trust or
authority towards the woman, commits rape on such woman”. Section 376(2)(k) covers a
category of accused who “being in a position of control or dominance over a woman, commits
rape on such woman”.

2
Section 228-A, Indian Penal Code
3
Nipun Saxena & Anr. v/s. Union of India & Ors, (11 December, 2018) SC.
Furthermore, according to Section 114A of the Indian Evidence Act “where sexual intercourse
by the accused is proved and the question is whether it was without the consent of the woman
alleged to have been raped and such woman states in her evidence before the court that she did
not consent, the court shall presume that she did not consent.”

These new laws, while progressive and sensitive to survivors’ concerns on paper, have presented
a challenge to survivors, law enforcers, lawyers, the judiciary and activists alike. It has taken
activists a long time to get the law to acknowledge that medical evidence is not the primary
determining factor in rape and other forms of sexual assault. However, the implementation of
these evolved laws is even more dependent than usual on robust investigation, the education of
investigating officers regarding the nuances of the law, and sensitisation of the legal community,
including the judiciary, as well as the media.

This point is illustrated by the Tejpal case where the entire edifice of the judgement is built on
slandering the survivor through a detailed and hostile scrutiny of her personal and professional
life both before and after the incident, rather than the core issue of the act of violence done to her
without her consent.

The victim/prosecutrix’s past sexual history is also often used to cast doubts on their testimony
and cast aspersions on their honesty. The statements made by the victim/prosecutrix are doubted
and they are effectively shamed for having a relationship outside marriage. Such provisions also
perpetuate gender-based double standards; a man’s prior sexual history or immoral character is
assumed to have no effect on his veracity whereas a woman’s past sexual history calls her entire
testimony into doubt. Section 155(4) thus creates a false presumption that women of immoral
character may have consented to the sexual act in a particular case. This provision may also be
invoked in cases of statutory rape where the victim is below the age of consent.

The Government of India has taken steps towards fixing this problem in our rape laws through
the Criminal Laws (Amendment) Act, 2018. The Government implemented the
recommendations of the 172nd Report of the Law Commission by deleting Section 155(4) of the
IEA and adding a new section 53-A which provided that in cases of sexual offences where the
consent of the victim was in issue, evidence of the character of the victim as to her previous
sexual experience would not be relevant on the issue of such consent or quality of consent.
Moreover, Section 146(3) of the IEA was also amended and a proviso was added which made it
impermissible to put questions to the prosecutrix as to her general moral character during cross-
examination.

The changes in the IEA with regards to the admissibility of character evidence in rape cases as
well as the cross-examination of rape victims have brought India’s rape laws in line with global
standards. They have given protection to the victim/prosecutrix so that they do not have to face a
gruelling and humiliating cross-examination at the hands of defence counsels. This has given the
victim/prosecutrix a shield against harassment in the courtroom and helped remove some of the
gendered stereotypes present in the IEA.
Another core issue, that of sexual harassment at the workplace, has not even been adequately
adjudicated, save for a concession that the accused was in a position of power over the survivor.
Throughout the eight-year-long process to secure justice, all the odds were stacked against the
survivor. There were multiple attempts to slander her, her personal data was obtained, her
request to depose through video-conferencing on account of rampant Covid-19 infections was
rejected and a warrant was issued for her appearance in the trial in the midst of the pandemic.

The trial and judgement are reminders, if any were needed, of how women’s reputations and
peace of mind are mutilated if they bravely step up to speak out against sexual violence. This is
why so few women do.

DIGITAL STRIP SEARCH

Months before the trial was due to begin, Tejpal had approached the Supreme Court in 2015
obtained a cloned copy of the survivor’s mobile phone as part of the “relevant documents” of the
case (since some SMS and email communication between them had been cited as evidence
against him in 2013). He thus ended up with access to nearly 2 lakh messages sent and received
by her over several years that had no relevance whatsoever to the case.

The police use mobile phone extraction tools to download the contents of survivors’ mobile
phones and other digital devices if these come up in evidence. Indian law lacks guidelines
directing investigating agencies not to allow blanket data probes and make them specific and
limited to information relevant to the crime. In addition, the digital evidence technology
available to Indian investigating agencies is not always up-to-date enough to enable police to
collect targeted pieces of evidence from smartphones rather than entire digital copies.

This means that, as in the Tarun Tejpal case, an accused could obtain the entire spectrum of a
survivor’s virtual communication simply because a couple of emails or SMSes were cited as
evidence against him. While this is obviously a massive invasion of privacy irrespective of the
nature of the complaint, it is particularly objectionable in rape cases since defence teams
invariably put the survivor’s character in the dock. Thus, the possibility of the accused getting
access to her entire digital communication, which could then be weaponised against her, is a
particular deterrent to any rape survivor who wishes to file a complaint.

This is not to say that Indian law has never been sensitive to survivors’ privacy concerns in the
matter of providing digital access to those accused in rape cases. The case of Malayalam actor
Dileep is relevant here. Dileep is accused as the prime conspirator in the rape of a woman
colleague in the film industry. The main accused had recorded the actual rape on his phone, and
those visuals were transferred to a memory card and the United Kingdom, the practice of the
police storing “full digital data downloads” of the mobile phones of rape complainants4for the
purpose of investigation was dropped in July 2020. This was after the UK’s Centre for Women’s
Justice (CWJ) supported by the Equality and Human Rights Commission, took up the cases of
two women survivors in a campaign against this “Digital Strip Search”. A UK government
investigation agreed that “excessive amounts of personal data” were being extracted from
survivors, and this was deterring them from coming forward

It is time for Indian activists and lawmakers to work towards terminating digital strip searches
here too, since they end up being a punishment for survivors irrespective of the final outcome of
their case.

In the case under discussion here, the access Tejpal’s team got to the survivor’s phone resulted in
the dredging up of material, both personal and professional, which were extraneous and
irrelevant to the incident but used to degrade, demean and harass her in court.

THE WAY AHEAD AND CONCLUSION

If this judgment illustrates anything, it is how regressive and stereotypical notions – resulting
from centuries of socio-cultural conditioning which lie buried deep in the collective
subconscious – shape the so-called procedural aspects of the law. A key reason for acquittal in
the judgment is that the survivor did not demonstrate the kind of behaviour that a victim of
sexual assault is supposed to show. The judge writes that the “photos show the prosecutrix to
be absolutely cheerful and with a smile on her face and not disturbed, reserved, terrified or
traumatised in any manner.

Lawyers in India have repeatedly pointed to the flaws in such assumptions. For instance,
Vrinda Grover writes, “To believe that there is a predictable way in which a rape victim will
react is in itself a myth and a falsity.” Flavia Agnes has also lamented, “The court clearly
thinks there is a certain way you should look after a rape.”

Who defines normative behaviour post-rape and how? Who has authorised these judges to
become custodians of morality and decide that there is a particular way in which Indian
women must behave after rape?

Hence what is required is proper sensitization of judicial officers, investigating officers,

public prosecutors ett on regular intervals. As findings suggest that the trial court judges and
the police are formally familiar with the guidelines and gender-sensitive procedures. These
agencies have also been exposed to training and sensitization programmes over a substantial
period. Yet lapses occur.

4
Police take too much data from victims' phones, says watchdog, accessed on October,19,2021<
https://www.theguardian.com/uk-news/2020/jun/18/police-in-england-and-wales-taking-excessive-personal-data-
from-mobile-phones>
Therefore

 The need for evaluating and reviewing the approach to trainings is called for.
 Emphasis needs to shift from sensitization programmes which often comprise of a series
of short lecture based sessions conducted by experts – to training programmes that pay
attention to curriculum, methodology and duration more seriously.
 There is a need for continued capacity-development of all agencies involved.
Specifically, it is important to qualitatively monitor the trainings that are conducted with
the agencies, including the duration for which they are conducted, the curriculum that is
set, and the agency that conducts these trainings as well.
 The methodology must include peer learning through participatory exercises and group
work, instead of following the lecture method. Even as the content may be on sexual
violence, the module must include how gender, sexuality, caste, disability, poverty
disadvantages and impacts access to justice.
 Provisions for punishment ought to be there in case of gross violation of the
guidelinesss, provisions etc.