On 6 August, the Bombay High Court’s two-judge Goa Bench convicted 'Tehelka' founder Tarun Tejpal of rape by a person in a position of authority and control/dominance (Sections 376(2)(f) and (k) of the IPC), assault with intent to disrobe a woman (Section 354A) and sexual harassment (Section 354B), among other provisions.
The Bombay High Court thus set aside the 2021 acquittal by the Additional Sessions Judge at Mapusa in Goa. I had joined others in widely criticising the Trial Court judgment, which had virtually put the victim on trial, relying on unfounded assumptions about what constitutes ideal victimhood.
However, by itself, it is an incomplete picture of what intersectional justice could look like for survivors of violence — both because there are inherent limitations to how far criminal justice reform can meaningfully go, and because no meaningful alternative structure has come into place that can provide support to survivors while allowing them to retain agency.
No 'Model' Victim: What the Judgment Says
The case involves two separate allegations of sexual assault and harassment during Think Fest, a work event held on 7 November 2013. The victim alleged that the accused asked her to accompany him in a lift, where he sexually assaulted her and tampered with the lift controls to keep the doors closed. She further alleged that on 8 November 2013, he again sexually assaulted her after asking her to accompany him in a lift.
On the same day, and soon after the incident, the victim informed friends, colleagues, and people she trusted. A few days later, she sought a formal inquiry into sexual harassment under the Vishaka Guidelines, following which the Respondent submitted a written apology. The criminal case was registered based on media reports and a letter from a member of the National Commission for Women.
The 2021 Trial Court judgment correctly noted that a conviction requires the highest standard of proof. However, it went beyond this by expecting the victim to behave in a very specific and rigid manner, effectively creating an idea of a ‘perfect victim.’
To the Trial Court, the victim lacked credibility because she continued to perform her work duties, was dancing at the club, and had a glass of wine; that she had photographs with another male on the beach; that she was looking for other jobs; that she did not appear to be recovering from trauma; or even that she consulted a lawyer and an NGO.
The High Court correctly held that the decision was based on considerations that were largely extraneous to a trial, as well as based on an unwarranted and wholly illegal scrutiny of the victim's past sexual relations.
The High Court therefore held emphatically that a victim’s credibility must be assessed on the facts, and not on ‘whether a survivor fits a narrow cultural mould.’
Instead, the High Court relied on the fact that the victim’s testimony was consistent and free from material contradictions, and was corroborated by people who were informed of the incident soon after it happened.
In addition, the defence failed to establish its plea of consent, having relied throughout on a bare denial.
Victim’s Rights: How Did We Get Here?
The merits of this individual case aside, it also offers a relevant cross-section in the history of the rights of victims of sexual violence. The incident took place in 2013, before the MeToo movement, and in the same year that a law to prevent and redress sexual harassment at the workplace was formally introduced.
Until then, there had been no specific law on the issue for nearly three decades, since the brutal gang rape of a Dalit woman in Rajasthan led to the Vishaka Guidelines.
That same year, the Nirbhaya case prompted the Justice Verma Committee's recommendations, which were codified in the Criminal Law (Amendment) Act, 2013.
In many ways, therefore, the judgment is an urgent reminder of how far the project of this reform has come. In fact, the offences for which Tejpal was convicted, sexual harassment, the enhanced punishment for rape by a person in a position of authority or dominance, and acts with the intent to disrobe a woman, were introduced through this Amendment Act.
The amendments to the Indian Evidence Act were also critical, for instance, the introduction of Section 53A, which makes evidence regarding a victim's character or prior sexual history irrelevant in a trial, and Section 114A, which means that there is a presumption of absence of consent where the victim has stated as such before the Court.
Apart from these reforms, the judgment also contains a nod to a much older, more troubling history, courts used to require corroboration of victims' testimonies because their evidence was scrutinised in the same manner as an accomplice to a crime.
The Bombay High Court judgment in this case reminds us that conviction may even be based on the sole testimony of a victim, and refers to a 1990 judgment of the Supreme Court, which clarified that the law on evidence must view victims of sexual violence as competent witnesses in the same manner as any other injured witness.
The deconstruction of the requirement of having physical resistance to violence also has a longer history. Like the Bhanwari Devi case, its foundations lie in the rape of another survivor of violence. known famously as the Mathura case, where police officials were acquitted of raping a tribal woman because of the absence of physical resistance to violence, a standard that has also since been set aside.
'Limits of Criminal Justice Reform'
At this juncture, it is important to contextualise that the law on evidence is, at the end of the day, an imperfect set of assumptions about human behaviour. For instance, we presume that an injured witness speaks the truth because we assume a person who has suffered an injury would want the real culprit punished.
At best, our jurisprudence can, through greater judicial sensitisation and judgments such as these, challenge a set of norms; for example, the Bombay High Court can remind us that 'expecting a survivor to be constantly miserable, meek or visibly broken' ignores 'the reality of human coping mechanisms.'
However, a survivor's conduct in the aftermath of an incident, or statements made from time to time about it, would continue to be scrutinised. Similarly, what new criminal laws can offer at best is independent participation at every stage of the trial.
There isn’t much further the project of criminal justice reform can go; convicting a person and taking away their liberty should, and must, require the highest level of scrutiny. This is especially important because past experience shows that the criminal justice system is often weaponised against the most marginalised sections of society.
It is in this context that we must also pause to consider the ‘intention to prosecute’ defence in this case, essentially, much was made of the fact that the victim did not herself initiate the criminal proceedings and had initially sought only an inquiry into workplace harassment or a severance package. However, a look at the cross-examination and the history of this case itself is enough to indicate why a victim may hesitate to go through the criminal machinery.
While the Court did not give much credence to this defence, relying solely on the fact that the victim participated in the trial and was consistent in her statements, this leaves us with a troubling paradox: we are unable to prevent the retraumatising, arduous nature of a criminal trial, yet we have tied every possible form of structural support for survivors to the requirement that they go through this process.
Workplace sexual harassment laws, which may offer limited alternatives, are largely not implemented and may still lead to the registration of a criminal case.
Rape crisis one-stop centres and victim compensation schemes are contingent on the formal registration of an FIR and, in practice, are frequently denied even after going through that process; and meaningful rehabilitation is wholly absent from the imagination of both law and policy.
Reading between the lines of the judgment, therefore, reveals a broader structural absence — the absence of both any meaningful agency for survivors and any alternative to a broken criminal justice system.
(Sanjana Srikumar is a Delhi-based lawyer. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)