The recent judgment of a trial court acquitting Tarun Tejpal, a former editor of a newsmagazine, who was charged, in 2013, of having sexually assaulted an employee, a young woman journalist, during an event the newsmagazine had organised in Goa, has created a furore and raised many questions about the law. The investigating officer has also been pulled up not only for the lapses in investigation but also for gaps in her knowledge of technology. The Goa government filed an appeal against Mr. Tejpal’s acquittal in the Goa Bench of the Bombay High Court requesting an immediate hearing. The Solicitor General of India, Tushar Mehta, during the hearing, said that the lower court’s judgment lacked sensitivity regarding crimes against women and awareness of the sections of criminal laws. “The law has evolved. The entire judgement proceeds as if the victim is on trial,” he added.
Back in 2002, based on the recommendations of the 172nd report of the Law Commission of India, two major changes were made in the Evidence Act . First, the Act was amended to prohibit the defence counsel from asking questions to the prosecutrix in a rape case about her general character to impeach her credibility. Second, the defence was not permitted to put questions to a witness in the cross-examination about the general immoral character of the prosecutrix and adduce evidence. Even if it is hypothetically assumed that the survivor had had sexual relations with someone, it does not give any person the licence to sexually assault her. The Supreme Court of India has repeatedly said that the purpose of cross-examining a survivor of rape is not to humiliate her but to get to the truth of the case. Therefore, questions about the past sexual life of the survivor should not have been permitted to be asked by the defence counsel as they violated the survivor’s right to a fair trial. The law does not permit the character assassination of a victim any more.
Second, the conduct of a survivor of sexual assault cannot be cast in a straitjacket formula. Every individual behaves differently under the given circumstances. When in this case, the survivor had been entrusted with an important task/s by her boss during the event and was afraid of losing her job by exposing her boss’s crime, her dual behaviour (i.e., in the public gaze and with acquaintances) cannot be termed unnatural. It would be too stereotypical and patriarchal to expect a survivor to be seen traumatised all the time in front of everyone. The Supreme Court, in Aparna Bhat and Ors. vs the State of Madhya Pradesh & Ors. (2021) specifically said that courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order’ about women. Stereotyping excludes any individualised consideration of a person’s actual circumstances and their abilities. It affects women’s right to a fair trial. Therefore, the judiciary must be careful not to create inflexible standards based on preconceived notions.
Details and omissions
Third, every omission does not amount to a contradiction; omission which by necessary implication leads to conflicting versions between the statements made before the police and the court would amount to contradiction. It is trite law that the previous statements of the prosecutrix and witnesses can be used to shake their credibility. However, it is quite natural for a survivor to share the incident in different words and details to different individuals. She is not expected to share the same graphic details of the sexual assault on her to every individual she meets or wishes to reveal the details to. Therefore, if the statement given during the trial is substantially consistent with the statement given to the police and judicial magistrate during the investigation, the difference of details given to other individuals through email or otherwise in the form of written statements, cannot be rejected by terming them as untrustworthy. The High Court, therefore, must clarify on this vital question of the law keeping in view the nature of the offence.
Protection of identity
The Indian Penal Code was amended in 1983 and disclosure of identity of the survivor of rape by anyone was made punishable under a newly added Section 228-A. The publication of name or any matter which may make known the identity of the survivor since then is thus prohibited.
The Supreme Court in State of Punjab vs Ramdev Singh (2003) held that the name of the victim should not be mentioned in the judgments, be it of that Court, High Court or lower court, and she should be described as ‘victim’ in the judgment. It therefore implies that anything such as the survivor’s husband’s name, her email address, etc which could reveal her identity, should not have been mentioned in the judgment. It is against the spirit of the law.
Sensitisation is a must
It is true that the investigation must be unbiased, honest, just and in accordance with the law. The entire emphasis on a fair investigation has to be to bring out the truth of the case before the court. However, some lapses in investigation and ignorance about technical terms such as ‘hash-value’ with regard to electronic evidence, should not lead to a total rejection of the prosecution case. Many amendments have been made in the criminal laws since 1983 with regard to crimes against women. The police must pull up their socks to improve investigation skills, and the application of the law should not elude justice due to a lack of proper sensitisation among other stakeholders in the criminal justice system.
R.K. Vij is a senior IPS officer in Chhattisgarh. The views expressed are personal