On Thursday, 27 May, the Goa Bench of the Bombay High Court directed the District & Sessions Judge who gave judgment in the Tarun Tejpal sexual assault case to redact the references to the survivor’s identity while uploading the order on the website.
The order has come in an appeal filed by the state against the acquittal of Tehelka’s ex-editor Tarun Tejpal on all charges by a District & Sessions Judge in Goa’s Mapusa court. Tejpal was accused of forcing himself on the prosecutrix, against her wishes, inside the elevator of Goa’s Grand Hyatt hotel during the THINK 13 festival.
In a judgment that runs into 527 pages, judge Kshama Joshi penned paragraphs on the survivor’s “non-rape victim like behaviour” to grant benefit of doubt to Tejpal.
What Does the Law Say?
Section 228A of the Indian Penal Code makes disclosure of the identity of victims of certain offences punishable. Any person who publishes or prints the name or any matter which may make known the identity of any person against whom an offence of rape is alleged or found to have been committed can be punished.
While section 228A doesn’t explicitly extend to judicial officers, the Supreme Court in Bhupinder Sharma vs State Of Himachal Pradesh held that even the judges should refrain from revealing the identity of a rape survivor.
“Keeping in view the social object of preventing the victims or ostracising of victims, it would be appropriate that in judgments of all the courts i.e. trial courts, High Courts and the Supreme Court the name of the victim should not be indicated.”The Supreme Court of India
Kerala High Court, in the case of Anju Varghese vs the State of Kerala, explained the rationale behind having such a restriction. The court reiterated that the provision was specifically intended to ensure that the survivor is not exposed to further agony by the consequent social victimisation or ostracism pursuant to disclosure of their identity.
“It is clear that, it is intended to protect her from psychological and sociological torture or mental agony, that may follow the unfortunate incident of sexual violence. Society has a duty to support the victims of sexual violence and to ensure that they come back to normalcy and start leading a normal life. Victims of such violence are not denuded of their fundamental right to privacy and are liable to be insulated against unnecessary public comments.”Kerala High Court
Therefore, it is a settled position of law, that the judicial officers are not supposed to reveal the identity of the survivor even in judicial orders. The upholding of this principle time and again in various judgments shows how Special Judge Kshama Joshi was either grossly negligent or was controlled by her own biases while writing the judgment in the Tarun Tejpal case.
Fighting Sexism in the Judiciary
On 18 March 2021, the Supreme Court of India passed a 24-page-long judgment on the ‘dos and don’ts’ for judges while handling cases of sexual crimes against women. In an attempt to remedy the ‘patriarchal mindset’ and ‘misogynistic attitudes’ in the judiciary, the court has held that the “use of reasoning/language that tends to trivialise the survivor, is to be avoided under all circumstances”.
While declaring that the ‘boys will be boys’ attitude has no place in the judicial reasoning, the court said:
“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility... shakes the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court.”The Supreme Court of India
In order to understand why such judicial orders are passed in the first place, the court turned to the concept of ‘judicial stereotyping’. Simone Cusack, an Australian lawyer, defined judicial stereotyping as a practice of judges ascribing to an individual specific attribute, characteristics or roles by reason only of her or his membership in a particular social group (eg women).
The court recognised that due to their incapability of challenging harmful stereotypes, judges can often perpetuate such prejudices in legal proceedings.
“Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice.”The Supreme Court of India
The court clearly recognised that the stereotyping of an ‘ideal rape survivor’ undermines the complex lived experiences of sexual assault. These ‘rape myths, the court said, credibility of those women who are seen to “deviate too far from stereotyped notions of chastity”.
Therefore, the court highlighted, imposing conditions such as community service that implicitly diminish the harm caused to the survivor, holds the potential of subjecting such survivors to “second victimisation”.
Woman Didn’t Behave Like Rape Victim’: Why Court Acquitted Tejpal
While acquitting Tarun Tejpal, the trial court held that the "woman's behaviour" was a key factor in "undermining her case".
According to the court, it was "unnatural" that a woman will "message her location" in the hotel. The incident allegedly occurred in the hotel elevator on 7 and 8 November 2013.
“If the prosecutrix had been recently again been sexually assaulted by the accused and was terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location, when she could have reported to (three women)?”Special Judge Kshama Joshi
Justice Joshi added that the woman admitted that two SMSes were sent from her phone and that those were not sent as "response to any message”.
“The prosecutrix sending the above message to the accused proactively without any attempt by him to ask her where she was, and her sending the same message thrice in the span of a very few minutes, clearly establishes that the prosecutrix was not traumatised nor terrified...”Special Judge Kshama Joshi
The Goa government moved the Bombay High Court on 25 May. “This is injustice meted out to a woman. In Goa, we will not accept this… With the kind of evidence and documents we had in the case, it could not have led to an acquittal. This is very sad,” Goa Chief Minister Pramod Sawant said.
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