Tarun Tejpal judgment: Putting the survivor on trial

Written by Salina Wilson

In 1992, males from dominant castes brutally gang raped Bhanwari Devi for stopping a baby marriage of their household as a part of her work. The apathy with which legislation enforcement and the district courtroom handled Bhanwari’s case led to widespread outrage and girls’s teams got here collectively to file a Public Curiosity Litigation (PIL) to claim ladies’s proper to security at work. In 1997, the Supreme Courtroom, in its landmark judgment in Vishaka and ors. vs. State of Rajasthan, laid down pointers affirming the elementary proper to equality, to life and the proper towards discrimination for working ladies.

Fifteen years after the Vishaka pointers have been laid down, in October 2012, the Supreme Courtroom of India in Medha Kotwal Lele and ors. Vs. Union of India recognised that the lady has affordable grounds to imagine that her objection might drawback her at work or create a hostile work setting. It outlined preventative steps that employers must take and if the nature of sexual harassment quantities to an offence beneath the Indian Penal Code (IPC). This order emphasised that the felony proceedings should be certain that victims or witnesses will not be victimised or discriminated towards whereas coping with complaints of sexual harassment.

The Sexual Harassment of Girls at Office (Prevention, Prohibition and Redressal) Act, 2013 drew consideration to the circumstances surrounding sexual harassment the place the survivor could also be promised preferential therapy or alternately, threatened with deferential therapy and/or lack of employment, or be subjected to humiliating or a hostile work setting. These circumstances make sexual harassment at work a fancy challenge, bringing in the components affecting consent because it straight impacts the livelihood and work setting for the individual being subjected to harassment. This complexity helps elucidate why we have to cease on the lookout for bruises and physique marks to ascertain {that a} sexual act was non-consensual and unwelcome. That is exactly why we have to critically look at the norms that ruled the pondering of the courtroom in the Tejpal case. The courtroom didn’t acknowledge the influential and highly effective position performed by Tarun Tejpal, then Editor-in-Chief of Tehelka, and his institutional accountability to make sure a secure work setting for everybody who works there. As a substitute, it selected to have a look at minute particulars of the survivor’s assertion with a lens of suspicion and disbelief.

In the aftermath of the 2012 Delhi gang rape, amendments have been made to the felony legislation in 2013. These amendments introduced beneath the ambit of the Indian Penal Code (IPC), normalised types of violence like “sexual harassment” “stalking” and “voyeurism”, criminalising which, is a vital step in understanding its critical ramifications to the well being and wellbeing for ladies. It’s also a recognition that whereas extra aggravated types of sexual violence are criminalised by legislation, these thought-about much less critical must be criminalised to discourage gender-based violence of any magnitude and kind, thereby selling ladies’s security in order that they’re able to train their rights and realise their full potential.

A big modification made to the Indian Proof Act of 1872, acknowledged that for circumstances of sexual harassment (Part 354 of IPC) and rape (Part 376 of IPC) the place the query of consent is a matter, “proof of the character of the sufferer or of such individual’s earlier sexual expertise with any individual shall not be related on the challenge of such consent or the high quality of consent”. This modification would necessitate a transformational change in how survivors are handled in courtroom emphasising the must cease re-victimisation throughout cross-examination. In the Tejpal judgment, nevertheless, it’s the survivor who’s put on trial. Irrelevant particulars of her sexual historical past have been introduced on file and a focus was given to minor inconsistencies to render the survivor’s allegations untruthful. The judgment additional steered that the witness must be “ready to face up to the cross-examination of any size” and “on no account ought to give room for any doubt” that confirmed an entire lack of empathy in direction of the survivor. It additionally identified that her shock and trauma from the incident isn’t supported by the CCTV footage. The delay in lodging the First Info Report (FIR) and the police not guaranteeing a medical examination have been used as the causes to suspect the proof of the lady’s assertion. That she contacted legal professionals and the Girls’s Fee was weaponised towards her. The Tarun Tejpal judgment thus single-handedly reversed any progress made by way of Supreme Courtroom judgments, suggestions of the Justice Verma Committee and the Prison Regulation Amendments in 2013.

The historic judgment by the trial courtroom that acquitted Priya Ramani in the felony defamation case filed by her former boss, editor-turned politician M J Akbar for accusing him of sexual harassment, stands in sharp distinction to the Tejpal judgment. Choose Ravindra Kumar Pandey sensitively noticed that “it can’t be ignored that almost all of the time, the offence of sexual harassment and sexual abuse [is] dedicated [behind] shut doorways or privately” and that “the lady can’t be punished for elevating [her] voice” as the “proper of repute can’t be protected at the value of the proper of life and dignity of a girl”. He recognised that “the lady has a proper to place her grievance at any platform of her alternative, even after many years”. Priya Ramani’s assertion upon her acquittal, lamenting that regardless of being a sufferer of sexual harassment, she needed to stand in the Courtroom as the accused, is testomony to the victim-blaming tradition that survivors are subjected to once they determine to talk up. That she felt vindicated by the judgment was a victory and encouragement for numerous different survivors who have been both not heard or believed.

There’s a must problematise our creativeness of what a survivor ought to look or sound like and query the due processes that set survivors up for failure giving the advantage of the doubt solely to the highly effective. We have been enraged when the Delhi gang rape of December 2012 occurred and we marched in protests throughout the nation to position accountability on the state and legislation enforcement. Now we have the alternative to face by this younger journalist in her battle for justice; allow us to not fail in our civic obligation to take action.

The author is a ladies’s rights activist from India presently working in the Canadian growth sector. Views expressed on this article are private.

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