In a recent development unfolding in the 2013 sexual assault case against former Tehelka editor Tarun Tejpal, the Goa bench of the Bombay High Court observed that the Goa Sessions court’s judgment acquitting Tejpal was like a “manual for rape victims”. "The judgment goes into how she (victim) responded. There are some observations on this. It is like a manual for rape victims," said Justice S C Gupte of the High Court bench on Wednesday.
Even though laws concerning sexual assault crimes places the “burden of proof” with the accused and not the complainant, courtroom trials routinely pass value judgment upon the behavior and lifestyle of victims, often resulting in a victim shaming narrative in Indian judiciary. Patriarchal custodians of women’s bodies, sexuality and collective morality ask them to dress ‘decently’, avoid stepping out late, not be in a romantic/ sexual relationship etc. This conveniently shifts the onus of the crime to a woman.
The High Court bench’s observations came in response to the Solicitor General of India Tushar Mehta who, appearing for the Goa government, read out portions from the Sessions court's elaborate 527-page judgment.
"The judgment says the victim, who is an intelligent woman and physically strong as she is a yoga instructor, could have prevented the sexual assault on her," pointed out Mehta.
Accused of sexually assaulting a young journalist, his then junior colleague inside the elevator of a luxury hotel in Goa, Tejpal had been booked under Sections 376 [rape], 354 [assault or criminal force to woman with intent to outrage her modesty], 354A [sexual harassment], 354B [assault or use of criminal force to woman with intent to disrobe], 341 and 342 [wrongful confinement] of the Indian Penal Code (IPC).
Remarking on the complainant’s conduct, an area lying outside the purview of the judgment, the trial court said that she did not exhibit any kind of "normative behavior" including “trauma” and “shock”.
At the heart of this discourse lies the image of the vulnerable, timid and violated image of the victim that ironically places the onus of proving her “virtue” upon her. In fact, her virtue, which in itself is a control mechanism of a patriarchal structure that demands a woman’s chastity, virginity and decorum, or the lack of it, should not have any bearing upon a court judgment.
Solicitor General Mehta told the High Court that the Sessions court's judgment shows “lack of sensitivity towards crimes against women” and an “absolute lack of knowledge on this subject”.
Also read: Tarun Tejpal Acquittal In Rape And Sexual Assault Case Is Emblematic Of The Negligent Way Indian Society Views Gender Crimes
Misogyny in Indian courtrooms
If the Tarun Tejpal case has been dominating news headlines given the stature of the accused, this is not a standalone case. The Nagpur Bench of the Bombay High Court ruled that groping a child’s breasts without "skin-to-skin contact" would amount to molestation under the IPC but not to the graver offence of “sexual assault” under the Protection of Children from Sexual Offenses (POCSO) Act 2012. The single bench of Justice Pushpa Ganediwala made this observation in January 2021, while modifying the order of a Sessions court that held a 39-year-old man guilty of sexual assault for groping a minor girl and removing her salwar.
In another case around the same time, Justice Ganediwala had held that the act of holding a minor girl's hands and opening the zip of pants will not be tantamount to “sexual assault” under POCSO.
Justice Ganediwala said that touching a minor’s chest would not amount to sexual assault unless the accused removed the top worn by the child or slid their hand within the child’s garment.
In both her judgments, Justice Ganediwala revealed a deep-seated misogynist bias that perpetuates trivializing sexual crimes committed against a gender minority and children. A patriarchal society is predicated upon an inherent gender hierarchy that perceives the act of a woman going to the court seeking justice in rape and sexual assault cases tantamount to bringing shame unto herself and her family.
In a June 2020 observation, the Karnataka High Court while granting pre-arrest bail to a man accused of rape, noted that it was "unbecoming of an Indian woman to sleep after she is ravished". What must be noted in this case involving a 27-year-old man as the accused and his 42-year-old female employer as the complainant is the choice of the archaic word “ravished” denoting a colonial hangover and prejudice against a woman’s body that is seen as a site of male consumption.
The Delhi High court while acquitting film director Mahmood Farooqui of rape in 2017, observed that a woman’s ‘no’ may not always mean ‘no’. Justice Ashutosh Kumar said, “In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no.”
In 2017, a two-judge bench of the Punjab and Haryana High Court granted bail to three law students who had been found guilty of blackmailing and gangraping a fellow student who was reportedly in a consensual relationship with one of the accused for a month. The High Court noted that the victim’s “allegations regarding her being threatened into submission and blackmail lend sufficient diabolism to the offence, but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind”.
How patriarchy in Indian judiciary eludes gender justice
Take a look at the language used in both these cases. No offence, but the use of words like “libido”, “misadventure”, “promiscuous attitude” and “voyeuristic mind” make it sound straight out of the pages of Mills & Boon romances or even a Jane Austen classic. Are courtrooms designed to fetishize women’s sexuality?
India is estimated to have the world’s largest young and working population by 2050 where women and men are bound to be engaged in working relationships in the public sphere and consensual romantic and physical relationships in the personal sphere, and both should remain outside the purview of morality. Rape is not an uncontrolled act of libido or passion; rape is power play, it draws from a patriarchal power structure that is sustained by the narrative of punishing a woman who transgresses. Such power play intersects with caste, class, age, religion but may not be limited to that. A woman, who is in a consensual and fulfilling sexual relationship or might have been in multiple sexual relationships, is not promiscuous. The operative word is consent.
With an estimated 99.1% of sexual violence cases going unreported in India, it is imperative Indian courtrooms take a more gender-sensitized approach in dealing with crimes of sexual assault that do not further deter women from reporting. At a time when access to fair courtroom trials and resources to legal redress still continue to be out of reach for large sections of women, it is only fair to expect a more nuanced and long-term vision from judges.
(Edited by Amrita Ghosh)