–Kakali Das |
The founder-editor of Tehelka magazine, Tarun Tejpal has been acquitted by a court in Goa in a sexual assault case. The verdict came after almost 8 years (which by itself is something to be worried about). To the uninformed, the founder-editor was accused of sexually assaulting a woman in a lift in of a 5-star resort in goa during an event in 2013. He was arrested the same year.Post the acquittal, The Goa state government, on 03 June 2021, pushed for its early hearing, saying “we owe it for our girls”, and that the acquittal order is “erroneous in law” and “unsustainable.” The Solicitor General of India, Tushar Mehta arguing before the Goa high court has said ‘we owe it to our girls, that the court hears it at the earliest.’
But why does he say, he owes it to our girls? This is an order which runs into more than 250 pages, and is terrible for women to even consider what is written on it. It, basically, talks about the immoral or loose character of women, examines whether prior sexual behaviour in any way has any sort of bearing on the case. It, actually, says in one point that even a woman of loose character has the right to refuse sex. It suggests that because the victim in question is a journalist, who regularly wrote on rape laws, and had a keen understanding of it, it put her in a position to structure her accusation in a most intelligent way, which was considered to have worked against her. The fact that she didn’t file her complaint immediately, and that she contacted lawyers and members of the women commission before filing it, in order to strengthen her complaint in some way, have seemed to work against her. A lot of the case deals with poking holes in the victim’s tectum, as if it was the victim who was on trial and not the accused. The order also said that the experts in question, her friends (journalists), the lawyers she had contacted helped her doctor events and add incidents. While she claimed that she was shaken from the trauma and was blinking back tears while exiting the lift (where she was apparently molested), the CCTV there, the order says, doesn’t support the same (her ‘body language’, apparently, wasn’t one supporting her claim). As per the judgement, “any person who is a victim of sexual assault has to exhibit her trauma.” It, effectively, has listed out an “ideal behaviour” for a rape victim or a victim of sexual assault – of how you should appear traumatised for everybody to discern it, shouldn’t return to work, or appear normal in photographs, and if, in case, you fail to fit in these fashioned norms, you don’t qualify as “an ideal victim.”
Women across the country have been shocked, and ironically traumatised by this order, which is why the Solicitor General is arguing that it be looked at immediately. How do we understand in our public conscience what this order mean? – Does it change the way rape cases would be looked at in the future? Does it mean that a journalist can never report if anything ever happens to them, since no good will come of reporting?
“More than half the pages of the order are on examining the prosecutrix, and the victim, her text messages, and who wanted to sleep with her allegedlyetc.This court isn’t making decisions ostensibly in accordance with the Supreme Court decisions, constitution, and or with section 275 of the IPC which says that consent must be willing and it must be explicit, and that it doesn’t matter whether you have medical evidence or not. The entire case seems like the victim or the prosecutrix is on trial, since her phone calls, texts messages have all been lookedat. Her relationship with every single witness has been examined. But it also starts off with justifying that because under India’s rape laws, the statement of the survivor/victim is enough to convict someone, the court has to extensively examine the statement for inaccuracy, which I understand to be logical, even though this seems a bit extreme,” Brinda Adige, Activist said.
“There is a gross negligence in my view in the way that the corroborative evidence has been dealt with. Much is made of the first person that she spoke to after the incident. What the judge fails to take into equal account is the fact that she spoke to large number of people after, and not that is relevant but because she was extremely upset about it.There’s also a lot to be said about the Investigating Officer, who, apparently, according to this judgement, failed to collect and preserve any evidence, that would have helped the victim or the survivor in this case,” Karuna Nandi, Advocate, Supreme Court said.
Is our system fundamentally flawed? Because we talk about sensitisation of cops, judges, prosecutors etc., is it making any real difference? If there is any difference that is being made with all of these sensitisation programmes and training, I think, it is merely a drop of cause. Somebody, profoundly, might say that little drops of water make the mighty ocean, but this ‘drop’ isn’t taking us anywhere. The system, the structures are completely flawed. Talks in an abstract fashion as the ‘structure’ and as the ‘system’ is fruitless. We must address the issue of the functionaries, hold the power within these structures and systems to dispense their duties. Never arethe functionaries of the court – the judges, prosecutors – pulled up, held accountable, challenged or questioned, but just the abstract ‘court’ in general. There is a system in the court to review the cases, judgements or verdicts by the judges. What happens to those judges whose verdicts are not in line with the law? Nothing! Their salaries are guaranteed at the end of every month, with promotions, perhaps; their perks aren’t reduced, they have nothing to lose.
In a diurnal manner, we witness women struggling while registering a case at the police station, visiting the courts thereafter, undergoing harassments while getting hold of lawyers etc. Even, in terms of the support from the state legal service authorities, what kind of lawyers are they assigned to eventually? Somebody who has passed out his/her law education six months ago, the one who isn’t very keen on taking up these cases, but must take it up for the sake of experience. And, yes, they do charge too. So, when we talk of the system, structures, according to me, are absolutely patriarchal. The question here arises is – Who is to set it right? Should we hold that functionary, in that particular court, police station, prosecutors and prosecution office responsible and accountable? He/she must be aware of their accountability for every case, but they never are. So, we continue and continue, and we are now 75 years down the line, with not a dime changing.
What our politicians do on a daily basis is, whenever there is a case that is upsetting people, they call for a death penalty. But, effectively, if we observe this case, what the judge has told us is that in order to be “an ideal rape victim” one has to be sexually inactive, meaning a virgin, one must never crack a sexually explicit joke on WhatsApp with any of her friendswith regard to anything, one must never hang out with her friends, have alcohol, or any sort of sexual experiences, one mustn’t, after she has been assaulted, go back to work and finish the job she have been assigned with, else she won’t be considered as being traumatised, one should remember the sequence of the incident precisely without faltering, or changing any of the details later. It’s almost as if the judge is exhibiting that if we don’t fall in any of these categories, there’s no point even reporting, since we won’t be believed thereafter. Moreover,if you’re an ideal rape victim, according to this court, your knowledge should be insignificant, because if you know too much the onus on you to go and get an immediate medical legal report, and file an FIR immediately, is futile, and giving up your constitutional rights to be an ideal victim is a prerequisite.Such a vilification in this gruesome manner is exasperating. SUCH A SHAME!
At the initial outset, I was outraged, angry and then frustrated when I read about the judgement. If somebody as privileged as her, who has been able to make a complaint, formulate her statement, visit the women’s commission – this is the kind of verdict that she receives – the women who are struggling mundanely, many of whom are afraid to go and voice their concerns out at the police station or court and make a deposition, because of the fear of how they will be looked at in their homes, by their families, neighbours, and even at their workplaces, what logical conclusion can be expected for these women! This is the situation of a person who had ‘so called’ access to a phone, somebody to complain to, to be able to consult and discuss the case, imagine the amount of hardships the women face who are around, with no access to the lawyers! The system is yet to acknowledge how women are withstanding violence of a different nature, at higher levels, deeper intensity, because somewhere along the lines the thought that women must remain silent is still ingrained, and prevalent.
Sooner or later, it is about delivering justice, and justice won’t ever be delivered in this fashion.