This judicial trapeze of a reasoning on consent is by no means a pathological vice of the Goa court that ruled on the Tejpal case alone.
The Tarun Tejpal judgment delivered by a Sessions Court in Goa on 21 May 2021 continues to be the subject of scrutiny by lawyers, feminists, and others for a range of reasons. A junior colleague of Tarun Tejpal, the editor-in-chief of Tehelka magazine accused him of raping her in an elevator at a five-star hotel in Goa during the magazine’s THiNK fest sometime in November 2013. Subsequently Tejpal was charged with and acquitted of offences under sections 376(2)(f) and 376(2)(k), aggravated rape clauses which prescribe punishment for rape by a person in a position of trust or authority and in a position of control or dominance respectively towards the woman. In addition, he was also acquitted of charges under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 354A (sexual harassment), 354B (assault or use of criminal force to woman with intent to disrobe), 341 (wrongful restraint) and 342 (wrongful confinement) of the Indian Penal Code.
It has been argued correctly that the judgment is misogynist and regressive, a product of anti-feminist bias, and laced with judicial stereotypes about rape victims. The Goa Bench of the Bombay High Court in fact observed that the judgment is like a “manual for rape victims” as it goes into how a victim should respond in such cases. The judgment, at 527 pages is a painful read, not only owing to its substantive content reproducing stereotypes and myths pertaining to rape victims, which has been cautioned against by the Supreme Court as recently as March 2021 and in its relentless invocation of and reliance on past sexual history of the complainant that is now expressly prohibited by law; but also, owing to its odd style of drafting, which makes it almost impossible to understand the court’s issue with specific findings, or its reasonings for that matter.
While this renders a detailed scrutiny of the evidentiary logic of the court in its order of acquittal a mammoth task, it still allows adequate opportunity for a careful reader of the judgment to examine some claims and contradictions which are apparent on the face of the judgment. I will look at one specific normative issue at the heart of the judgment which is rife with contradictions, of fact as well as law and that is, the issue of consent, which is central to rape law and this case and how the court deals with it.
The accused was charged with committing rape under “secondly” of section 375 IPC i.e., without her consent. In other words, forcible sexual intercourse with a woman is covered under this clause. After the Nirbhaya case, which introduced the 2013 criminal law amendments, a definition of consent finds a place in section 375 as well. Consent, in explanation 2 to section 375 implies “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act” and that “a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity”. While the rape accusation has been denied simpliciter by the accused, a careful look at the contents of documents, including email correspondences and WhatsApp messages on record and the responses by the accused under section 313 of the Criminal Procedure Code tend to suggest otherwise.
On 19 November 2013, after the complaint was made by the woman, the accused sends her two emails — one an informal apology, another a formal apology. In the first mail, the accused writes that they were “playfully and flirtatiously talking about desire, sex” and that “it was in this frivolous, laughing mood that the encounter took place.” He further writes that he had no idea that his junior colleague was upset or that felt it had been even remotely nonconsensual. He states that he felt shocked and devastated that she felt he had imposed on her, which had neither been his reading or intention and that he had read it all wrong. He even volunteers to apologise to her mother and her boyfriend for this conduct. This is followed by a “formal apology” where he apologises “unconditionally for the shameful lapse of judgment” that led him “to attempt a sexual liaison” with the woman “on two occasions on 7 November and 8 November 2013”, despite her “clear reluctance” that she “did not want such attention from him”. He further apologises for violating the “propriety and trust embedded in that relationship”. This is followed by a formal letter to the managing director, which was subsequently forwarded by her to the editors and bureau, where the accused categorically states that a “bad lapse of judgment”, an “awful misreading of situation” led to an “unfortunate incident”. He recuses himself from his editorship for six months stating that he has already “unconditionally apologised” for his “misconduct” to the woman and that he felt compelled to atone further and “do the penance that lacerates” him.
A reasonable person will of course wonder, if the alleged incident is simply denied by the accused, then what are these apologies for? What does the accused imply when he speaks about an “encounter”? What do words like nonconsensual, imposed, reading, playfully, flirtatiously, liaison, misreading suggest if not to imply that such ‘encounter” on the nights of 7 and 8 November did occur and that the accused was under the impression that the same were founded on mutual consent? This makes consent a core issue before the court despite irreconcilable and contradictory claims made by the accused and while one expects that a trial court will scrutinize these contradictory claims in order to respond to the two primary questions before it, namely, was there a sexual intercourse inside the lift, and if the same is answered in the affirmative, then, was such sexual intercourse without consent. From a plain reading of the letters and WhatsApp messages, it is clear that something happened in the lift. The managing editor, a prosecution witness, also states on record that the accused had informed him that he and the prosecutrix had a “fleeting consensual encounter”. The defense states that all that happened was drunken banter outside the lift, when the complainant and accused were discussing sex and desire. The plain dictionary meaning of banter is “to talk to someone in a friendly and humorous way”, “good-humored, playful, or teasing conversation” while that of encounter is “to experience something”, “unexpectedly be faced with or experience something hostile or difficult”. Sexual encounter is commonly understood as any act between two or more persons involving sexual contact. It doesn’t take an English language expert to discern that a drunken banter is not the same as a sexual encounter.
The judicial wordplay explaining away drunken banter and erasing “sexual encounter” therefore deserves a deep scrutiny. The defense makes a case that the apology mails were for some drunken banter before the accused and the complainant entered the lift and that no “sexual encounter” took place inside the lift. The defense pleads that the drunken banter involved some “stories of her amorous escapades” to the accused, especially about the complainant’s sexual encounter in the previous year’s THiNK, with a celebrity. A WhatsApp message with the word “fingertips”, from the accused to the complainant after the alleged sexual encounter between them, is explained away, by citing this supposed previous year’s sexual encounter. Far from scrutinising this corroborating piece of evidence as subsequent conduct, the court agrees with the defense version. Alarmingly this information of previous year’s encounter with the said celebrity, obtained from the accused himself and another defense witness (DW4), apparently, an ex-boyfriend of the complainant, then becomes an excuse for the court to scrutinise the complainant’s character by putting her on trial. Past sexual history is introduced with a sleight of hand by the defense and the court, far from prohibiting it, allows and affirms it in the judgment by the logic, that the statutory prohibitions under S. 53A, 155 and 146 of the Indian Evidence Act would not apply as the witness was “deposing to the facts which are relevant to decide the main issue in question and do not pertain to proving consent or the character”.
This judicial trapeze of a reasoning on consent, is by no means a pathological vice of this court alone, or the special judge who authored the judgment. In 2017, the Delhi High Court acquitted the accused in Mahmood Farooqui v State by turning the definition of consent on its head stating that a “feeble no” may mean yes. Few years earlier, in 2016, the Supreme Court in Raja v State of Karnataka, held that the survivor’s conduct was not that of a “terrified” and “distressed” rape victim because she had wandered around at night instead of hurrying home. Incidentally, all these judgments are after the passage of the 2013 amendment, which expanded the definition of rape, introduced the definition of consent, introduced section 53A which categorically stated that in a prosecution for certain kinds of offence, including rape, outraging of modesty, sexual harassment and disrobing, where the question of consent is an issue, evidence of character of the victim or her previous sexual experience with any person shall not be relevant on the issue of consent or its quality. But the larger framework of criminal justice adjudication does not rest on amendments to criminal law alone.
The state has periodically responded to incidences of (mostly brutal) sexual violence by so called “strengthening” of rape law — by imposing/increasing mandatory minimum punishment, declaring setting up of special courts and bringing other cosmetic changes — without bothering to fix a criminal justice system which is completely broken. Recent studies have even suggested that mandatory minimum punishment in rape law has led to more acquittals, in keeping with the experience from other parts of the world. Rigorous training and sensitisation of every limb of the criminal justice system, from police to lawyers to judges, is required to break this status quo. Even the Verma Committee, set up after the Delhi bus rape incident, which suggested some of the most progressive changes to rape law, was oblivious of the role of the judiciary in the maintenance of the status quo. Nor did it scrutinise the role of defense lawyers in rape trials and the trauma that is unleashed during cross examination. The Tarun Tejpal judgment is an opportunity for us to think of the malaise of the criminal justice system critically as feminist lawyers.
Jhuma Sen is Associate Professor and Assistant Director — Centre for Human Rights Studies, and Assistant Director — Mooting and Advocacy Programme, at Jindal Global Law School, OP Jindal Global University.
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