The recent verdict by the Sessions Court Mapusa Goa, on the 2013 Tarun Tejpal rape and sexual assault case has resulted in an outrage amongst 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 sexual assault victim, 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 victims of sexual abuse by evaluating the testimony of the prosecutrix in the instant case 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.
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 on her in an elevator. In the court’s decision which was placed in public domain last week, the bench made several unsolicited observations about the victim’s past behavior and character holding that “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 victim has resulted in overlooking certain important legal premises such as section 354 A of the Indian Penal Code, which seeks to establish that ‘sexually coloured remarks’ are sufficient to regard the accused guilty of sexual harassment (attracting due punishment).
During the order, Justice Kshama M Joshi makes repeated references to the prosecutrix (the victim) and polices her on the precautions she ought to have taken to prevent the crime, by completely overlooking the context of the apology made by the accused of the act committed by him. Further, while acquitting the accused the judgment proceeds to shame the victim, 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 victim as opposed to the accused. The judge further placed reliance on trivial contentions such as ‘delay in filing FIR’ while deciding the case, when in fact court have time and again held that a delay in filing FIR is not in fact fatal to the case of the prosecution.
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. M.J. Akbar, wherein the judge actively recognized the victim’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 victims face under such circumstances, giving them sufficient time in approaching the court notwithstanding delays. 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.
While courts have time and again grappled with the idea of ‘consent’ in attempting to define its murky contours, the credibility of the prosecutrix in sexual harassment cases are often undermined by giving effect to baseless character assassinations of the victim which have no real bearing on the case. In doing so, the language used by the defence and the bench, in particular, have traditionally remained largely pejorative towards women. The Tejpal decision is no different in that, it reinforces regressive misogynistic values, by blatantly violating section 228A of the IPC, while holding that the victim had indulged in ‘flirtatious behaviour’ in the past and that it would therefore mean that she is not eligible to be a victim 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 victim) or previous sexual experience not relevant in certain cases” (For Example: offences under section 354 and section 376 IPC). Even assuming that the victim’s past behaviour is taken into account, the decision directly contradicts the supreme court decision in Jai Bagwan v. State (Government of NCT Delhi) 2018, whereby the court upheld the victim’s right to consent while insulating it from her character and morality. A bench consisting of Justice Banumati and Justice Indira Banerjee while ruling on a gang rape against a sex worker, debated the discourse on 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 exhaustive guidelines to be followed by the judiciary in deciding matters of sexual violence against women. A bench consisting of AM Khanwilkar and S. Ravindra Bhat, JJ 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 in India, 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.
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 victims 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 victim, 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 victims 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.
Views expressed above are the author’s own.
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