CHALLENGED: The Solicitor General of India, Tushar Mehta, was quite agitated at the suggestion that a senior Supreme Court advocate of the standing of Indira Jaisingh, could be a party to any doctoring of the complaint.
By Rajan Narayan
The Goa Bench of the Bombay High Court comprising Justice SC Gupte and Mahesh Sonak, issued notice, returnable on June 24th and called for all papers and proceedings from the session court till then. The court said a prima facie case was made out considering leave to grant the application for retrial.
The Solicitor General of India, Tushar Mehta, who represented the state of Goa in the appeal by the state government against the acquittal of Tarun Tejpal, in the molestation case stressed that there were no fixed norms on how victims of sexual assault should behave. The Solicitor General requested the judge to hold an urgent hearing as the government wanted to send out the right message to women that it did not agree with the perception of the Additional District Judge, Kshama Joshi.
During the hearing, Solicitor General, Tushar Mehta, said that the judgement and the Court’s approach shows a complete lack of sensitivity and knowledge on the subject of crimes against women.
“The law has evolved. The entire judgement proceeds as if the victim is on trial.”
VICTIM’S MANUAL
Justice Gupte sarcastically added that the judgement “appears to provide a manual on how rape victims should behave. Mehta said, “There is a reference that the accused consulted senior lawyers, Indira Jaisingh, and Rebecca John. This conduct has seriously gone against the victim. If this girl would have approached me I would have asked her to consult them. They are feminists.
I pose a question to myself. In this country, is being a feminist a negative thing? A feminist is a person who fights for equal rights. I am a feminist. This judgement would travel throughout the world. No sexually offended women would take to the legal route. Please make the notice returnable as soon as possible.”
The Bench then issued notice to Tejpal on the appeal.
Tejpal, co-founder and former Editor-in-Chief of Tehelka Magazine was acquitted of all charges on May 21 by a fast track court in Mapusa, Goa. He was accused of forcing himself on his junior colleague against her wishes, inside an elevator of the Grand Hyatt, Bambolim, Goa on November 7 and 8, 2013, during the magazine’s official event – the Think 13 festival.
In her 527-page judgement, Special Judge, Kshama Joshi, extensively commented on the woman’s non-rape victim like behavior and faulty investigation, to grant Tejpal the benefit of the doubt.
On May 27, a vacation Bench of Justice, SC Gupte, directed the trial court to Redact all references revealing the victim’s identity while uploading the order on its website and permitted the Goa Government to amend its’ Leave to Appeal.’
In its amended grounds for appeal u/s 378 of the CrPC the Goa Government ,has cited the trial court’s lack of understanding of a rape victim’s post-trauma behavior, using her past sexual history and education as legal bias against her, and making observations driven by “patriarchy” to challenge the judgment acquitting journalist Tarun Tejpal. It has also kept the option of re-trial open.
The appeal also seeks expunging of all such portions of the victim’s evidence that are not in conformity with Sections 53A and 146 of the Indian Evidence Act. These sections make it inadmissible and impermissible to ask questions about a victim’s past sexual history, when issues regarding consent are involved.
He was tried for committing offences punishable under IPC Sections 341 (wrongful restraint), 342 (wrongful confinement), 354 (sexual harassment), 354A(1)(I)(II)(demand for sexual favours), 354B (assault or use of criminal force to woman with intent to disrobe), 376 (2)(f) (person in a position of authority over women, committing rape) and 376(2)(k) (rape by a person in a position of control).
The presumption was that the then state government, led by former Chief Minister, late Manohar Parrikar, wanted to frame the owner and Editor-in-Chief of the Tehelka Magazine, Tarun Tejpal. Tehelka had exposed the former President of the Bharatiya Janata Party, Bangaru Laxman, taking a bribe for the supply of Defense equipment. Tehelka had acquired a lot of fame for exposing the cricket match fixing scam, involving the Australian Cricket Captain, Shane Warne and the top Indian batsman, Mohammad Azharuddin. Tehelka had also exposed Jaya Jaitly, the companion of the then Defense Minister, the late George Fernandes.
GOA THINK FESTIVAL
Tehelka used to hold “Think festival in Goa at the Bambolim Hayatt”. A lot of top celebrities were invited to attend the high profile festival. During the Think festival held in November 2013, the chief guest was the Hollywood superstar, Robert Anthony De Niro. The job of the survivor who was then working for Tehelka was to look after Robert De Niro and his daughter Drena De Niro.
The victim was allegedly asked by Tarun Tejpal to accompany her to the suite of Robert De Niro as he had something to discuss with. The accused, subsequently claimed that Tarun Tejpal had molested her in the lift, while it was going up to the first floor where Robert De Niro’s room was located. The accused also claims that she had informed the than Managing Editor of Tehelka, Shoma Chaudhary of the incident. The victim claims that Shoma Chaudhary, persuaded Tarun Tejpal to apologize as part of the internal enquiry into the complaint.
The Government of Goa, when it came to know of the charges of the accused, filed a suo moto complaint against Tarun Tejpal. Sunita Sawant, who was then a police inspector of Old Goa police station, filed the First Information Report (FIR) on behalf of the state. Sunita Sawant also was entrusted with the investigation of the complaint. This was unusual as normally the complainant is not permitted to investigate the case. After the filing of the charge-sheet, Tarun Tejpal appealed to the Bombay High Court to dismiss the case. The Bombay High Court refused to intervene. Subsequently Tarun Tejpal appealed to the SC which also refused to intervene. However, the sessions judge, Kshama Joshi, was told to complete the hearing of the case in six months. Tarun Tejpal, who was given bail by the Supreme Court for conducting the funeral of his mother, continued to remain on bail.
TARUN TEJPAL ACQUITTED
Contrary to the expectation of the BJP government, the Additional Sessions Judge (ASJ), Kshama Joshi, acquitted Tarun Tejpal, for the offense punishable under section 376 (2)(F), 376 (2)(K) 354,354 A, 354 B, 341 and 342 of the Indian Panel Court. The accused was directed to furnish a personal bond and surety for an amount of Rs 20,000 to appear before the High Court as and when such Court notice in respect of any appeal or petition against the judgement of the court is filed.
The Government of Goa was very prompt in filing an appeal against the order passed by the Additional Sessions Judge, Kshama Joshi acquitting Tarun Tejpal of all the charges made by the victim. How seriously the Goa Government took the acquittal is dramatized by the fact that the Solicitor General of India, Mr Tushar Mehta, flew down to represent the state of Goa in the case. The Solicitor General took strong objection to the Additional Sessions Judge, Kshama Joshi, revealing the names of not only the victim but her mother and husband who was her fiancée at the time of the incident. The Solicitor General also objected to the suggestion by the Additional Sessions Judge that the act of consulting senior Supreme Court lawyer, Indira Jaisingh, could have led to the doctoring of the compliant of the accused.
CCTV FOOTAGE
The judgement reveals that the investigating officer, Sunita Sawant, had not submitted the CCTV of the first floor of the hotel, which showed the victim and the accused coming out of the lift of the floor in which Robert De Niro had his suite. The Additional Sessions Judge, repeatedly expressed her dissatisfaction with the manner in which the investigation was conducted. The most controversial aspect of the judgement is the comment made by the Additional Session Judge, Kshama Joshi, that “the evidence of witnesses and print outs of photograph clearly prove that the victim was absolutely in a good mood, happy, normal, smiling and did not look distressed or traumatized in any manner what so ever, though this was immediately a few minutes after she claims to have been sexually assaulted by the accused.” “It is extremely revealing that the survivor’s account neither demonstrates any kind of normative behaviour on her part- that a victim of sexual assault on two consecutive nights might plausibly show, nor does it demonstrate any such behaviour on the part of the accused.” Which was what provoked the Solicitor General, Tushar Mehta to demand of early hearing of the case as the government did not want to be misunderstood by the women. The hearing was held on June 2, 2021.