“Tehelka” tried to conceal the gravity of its Editor-in-Chief’s alleged sexual assault, which is rape under the amended IPC. It tried to divert attention to an inquiry by an in-house committee mandated by a 2013 law meant to protect women in workplaces. This Act deals with sexual harassment of a lesser degree, the offences under it are non-cognisable, and it is in limbo since the government has failed to draft the Rules.

The Goa government and police have taken the right step in filing a First Information Report (FIR) against Tarun Tejpal, Editor-in-chief of Tehelka magazine, for sexual assault on a woman colleague while she was fulfilling work-related responsibilities. Sexual offences are cognisable crimes and the state is duty bound to take action if the information of such a crime is in the public domain. Tehelka has often advocated the rights of women and other sections of the marginalised and therefore its admirers are shocked and angered at the ethical and moral collapse of the organisation as soon as it was called upon to use the same standards for itself as it had rightly demanded of others.

All too often, because of the nature of the offence, reporting of a sexual crime depends on whether or not the victim of the crime is able to speak about it and report it and it is a shocking reality that this heinous crime is also one of the most under-reported. The reasons are many. Social stigmatisation, traumatising legal procedures, the hostile attitude of public officials, discouragement from families and friends who want to protect the victim from the toll that fighting a case may impose on her, are some of the often compelling factors that impose silence around the crime. This, in effect, works to the benefit of the perpetrator of the crime. In the case of a working woman, almost always an employee subordinate to the man who has sexually assaulted her, reporting the crime is all the more difficult because of the apprehension that it would involve, in addition to everything else, the loss of livelihood. In case after case this is what happens: the woman who dares to complain of sexual harassment against her boss loses her job.

The young woman journalist in the Tehelka case showed exemplary courage in reporting the crime to the second-in-command, the Managing Editor, Shoma Chaudhury. But she was let down again by those she had trusted. Ms Chaudhury, who received her complaint, chose to accept the farce of an apology offered by Mr. Tejpal, chose to whitewash his crime, chose to accept his self-serving, self-decided, self-imposed punishment of a six-month sabbatical. She further defended her decision by the outrageous statement that “it was more than what was asked for” — after all, he didn’t just apologise, but look, there’s atonement too, six whole months of not being the Chief Boss. If other rapists locked up in the jails of India had been beneficiaries of such an approach, they would all be lining up at the doors of their victims, offering their apologies, promising months of atonement. It is easier after all to atone in the circle of loving friends and families than to face the law and the consequences of your crime.

The crime is rape

And make no mistake, going by the victim’s complaint under the amended Indian Penal Code’s definition of rape in Section 375B read with Explanation 1, the crime committed was rape, which if proved, gets the accused a jail sentence of a minimum of seven years. Further, under the amended law, under Section 376(2)(f) of the IPC where the offence of rape is committed by a “relative, guardian, teacher, or a person in a position of trust or authority” and also under Section 376(2)(k) where “anyone being in a position of control and dominance over a woman commits rape on the woman” the offence is considered an aggravated form of rape and the punishment is enhanced to a minimum of ten years. The Tehelka case would invite these provisions.

The gravity of the offence was sought to be concealed by Tehelka in another way too, and regretfully some women activists and women lawyers, in their misplaced arguments on several television channels, became party to this exercise in deception. It was put out that the complainant herself would prefer that the case be referred to an in-house committee mandated by the law against sexual harassment at the workplace. Actually the Act is in limbo as the Central government has failed to draft the Rules. Since Tehelka did not have such a committee, it set one up within a day. This was then showcased as a serious effort by Tehelka to address the grievance of the young journalist.

Ambit of the 2013 Act

This law, known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is based on the Vishaka judgment of the Supreme Court of India. It was meant to serve the purpose of getting quick justice to women employees without the lengthy procedures of a court case — in cases of sexual harassment of a lesser degree, which come under the anti-molestation clause of the IPC. This is clear from the very definition of “sexual harassment” in the Act ranging from “physical contact or advances” to a “request for sexual favours” or “making sexually coloured remarks.” They are all offences in themselves, but are certainly not to the degree of the crime of rape. But more importantly, the Act, which is designed to find a civil remedy, has a specific clause that makes all cases under it non-cognisable.

Under Clause 27(1) of the 2013 Act, “no court shall take cognizance of any offence punishable under this Act save on a complaint by the aggrieved woman or on authority of the Internal Committee.” Clause 27(3) specifically states that “every offence under this Act shall be non-cognisable.” These are ambiguous clauses in the Act that could be read as a nullification of the mandatory responsibility of the State to take suo motu notice of a cognisable crime, such as the offences figuring in the Tehelka case. It would be a mockery of the struggle of working women for justice if the Act were to become an instrument to reduce the gravity of a cognisable crime such as rape, which should be tried under the relevant anti-rape laws. It was not to provide justice to the victim but to protect the accused, in this case the boss, that such a case was going to be referred to an internal committee. However, events have overtaken this attempt to underplay the crime, and the processes of law have already started with the filing of the FIR.

Agency and the law

The other argument advanced to support Tehelka’s handling of the case is that a complainant has “agency,” the capacity to take her own decisions, and that therefore if she chooses not to report the crime to the police and chooses other ways of finding justice or even remaining silent, that is her business and should be respected.

The assertion of agency by a rape victim in relation to the action to take against her tormentor requires that she has full information of the different laws, that she has the time to think things through, the pros and cons of not going to the police to file a complaint. Was she informed that the 2013 Act against sexual harassment deals with offences of a lesser nature? Was she informed that the punishment under the Act could not in any way match the crime that was inflicted on her? Did she know that her job was protected by the law? Was she offered the best legal advice and support to fight for justice? Without such a framework, the use of the argument of agency ends up as a shield to protect the accused from being prosecuted under the anti-rape laws.

In cases such as Tehelka, it is essential for the organisation and management to advise the victim to file a case with the police and to provide all legal help, which would better help her make an informed choice. In fact, the employer herself under the Vishaka judgment had a duty to report the offence to the police. Men in positions of power, who use that position to exploit women employees for sexual gratification cannot be allowed to get away with it.

And what about Gujarat?

There is also a political dimension to this. Since Tehelka’s sting operations had exposed the Bharatiya Janata Party’s corruption and underhand dealings, the present case has provided the BJP with an opportunity to hit back. In fact, the case highlights the double standards being used by that party. If in this case the Goa government run by the BJP can take suo motu notice of a cognisable crime, why is the same alacrity not being shown in Gujarat, also led by the BJP, where in violation of the law a young woman known to the Chief Minister was reportedly put under intense surveillance by the Anti-Terrorist Squad, on his orders? This constitutes a cognisable crime that requires the State to file an FIR for the violation of Section 5.2 of the Indian Telegraph Act and possibly of Section 354D(ii), which deals with the offence of stalking a woman under the amended IPC. The crimes differ but both are cognisable and therefore the same processes of law should be as applicable in Gujarat as they are in Goa.

(Brinda Karat is a member of the Polit Bureau of the Communist Party of India (Marxist) and former Member of Parliament.)

The article has been corrected for factual error.

Correction

The bio-note described Brinda Karat as a member of the Polit Bureau of the Communist Party of India and former Member of Parliament. She is a member of the Polit Bureau of the Communist Party of India (Marxist).

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