A law on test

The case against Tarun Tejpal will test the effectiveness of the amended law on rape and sexual assault.

Published : Dec 11, 2013 12:30 IST

Justice J.S. Verma with (left) Justice (Retd.) Leila Seth and Gopal Subramaniam, former Solicitor General of India, addressing the media after submitting their report recommending tougher laws for crimes against women,  in New Delhi on January 23.

Justice J.S. Verma with (left) Justice (Retd.) Leila Seth and Gopal Subramaniam, former Solicitor General of India, addressing the media after submitting their report recommending tougher laws for crimes against women, in New Delhi on January 23.

THE rape, sexual assault and harassment case against Tarun Tejpal highlights several important legal and other issues. It underscores the vulnerability of women, even highly educated and middle class, in their workplaces. It draws attention to the multiple concerns that women have before they even make the initial complaint. The victim/complainant in the Tejpal case is reported to have said that she was confused, hurt and scared, and did not want to lose her job. She, therefore, continued to discharge her official responsibilities and behave “normally” in public. This is why she did not immediately report the matter. However, the defence is using this “delay” to show that no “assault” had taken place.

It is well known that apart from losing their jobs, most women who make complaints of sexual harassment are accused of filing a false complaint or of acquiescing in the act. In rape cases, one of the standard defences inevitably is that the victim consented to the sexual act. Thus, though, at first Tejpal is said to have admitted that he attempted a “sexual liaison” with the victim despite her “clear reluctance that [she] did not want such attention from [him]”, he later claimed that “it was a fleeting, totally consensual encounter”. The initial admission and subsequent retraction was also noted in the trial court order rejecting anticipatory bail in Goa. Also, most women, naturally, do not want to face the trauma and agony of going through this process of blame and counter-blame, which takes a long time to come to a conclusion given the law’s inevitable delays.

As has been said elsewhere, this case is also, in many ways, a test case for the new rape and sexual assault laws that were fast-forwarded after the Nirbhaya case. There are two important changes in the substantive rape law which squarely apply to the Tejpal case. One is the enlarged definition of rape in Section 375 which not only is, as hitherto defined, penile-vaginal penetration, but includes also forced oral sex (Section 375(d)), and insertion “to any extent” of “any object or a part of the body… into the vagina, the urethra or anus of a woman”. Therefore, Tejpal’s action amounts to rape under the new law.

The second important change in the rape law is the expansion of the categories of aggravated forms of sexual assaults in Section 376(2) to include rape by “a person in a position of trust or authority” in clause (f) and by a person “in a position of control or dominance over a woman” in clause (k). Tejpal is alleged to have suggested to the victim that yielding to his advances was the “easiest way for [her] to keep [her] job”. Also, the order of the Goa Additional Sessions Judge refusing anticipatory bail points out that Tejpal “had misused his position, betrayed her trust and violated her body”. The case registered against Tejpal falls in the aggravated category. Whereas for “ordinary” rapes the minimum punishment is seven years, for aggravated forms of rape, a minimum of 10 years and a maximum of life are prescribed. Life sentence has also been specifically defined as “imprisonment for the remainder of that person’s natural life”. Of course, the quantum of punishment would depend on the severity of the crime. In the aggravated category of rapes, once the factum of sexual intercourse is proved and the woman says she did not consent, the onus is on the accused to prove that the woman consented.

Apart from rape, Tejpal has also been accused of the offence of sexual harassment under Section 354A, Indian Penal Code (IPC), which punishes “physical contact and advances involving unwelcome and explicit sexual overtures” and a “demand or request for sexual favours”. A case can also be registered against him under Section 354, which describes molestation as “sexual assault with intention to outrage the modesty of a woman”, which entails a punishment of imprisonment for a period of one to five years.

The defence, in this case, has claimed that the delay in filing the case vitiates the complaint and that the behaviour of the victim in going around “normally” showed that nothing non-consensual had happened. However, not lodging a complaint for a few days is normal in several cases of rape and sexual assault. Victims of rape and sexual assault normally weigh the pros and cons of making a complaint before they do so. The Supreme Court, in a number of cases, has held that a few days’ delay in lodging a first information report (FIR) in cases of rape and sexual assault is not fatal to the case, as the victim, for a variety of reasons, does not immediately contact the police.

Unlike the old law, the new rape law explicitly defines what “consent” means. Rape and sexual assault can only be established if the complainant does not consent to the sexual act. For several years, women’s organisations like the All India Democratic Women’s Association (AIDWA) had asked that consent be explicitly defined to clearly state that if the victim remains passive, it would not amount to consent. Finally, the new laws explicitly define consent in Explanation 2 to Section 375 that consent is “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the act, provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity”. Thus, a rape victim is not required by law to physically protest, shout or scream to show that she did not consent. No marks of struggle are required to show non-consent. The absence of consent is what is really material.

Thus, even if a victim does not publicly proclaim rape and show obvious signs of trauma, she cannot be said to have consented. As reported in the Tejpal case, not only did the victim repeatedly refuse and resist Tejpal’s advances, but he was fully aware of her unwillingness, which he allegedly admits in his own email to her. Despite her protestations, he did not stop, with the full knowledge that she was not consenting to the “liaison”. Further, in this case, the victim, immediately after the incident, left the venue and went to her hotel and complained to three friends in detail about the assault. The next day, when the second incident occurred, she talked in detail to her family members and her friends. It has also been reported that the CCTV footage shows the victim coming out of the elevator adjusting her clothes and running down the steps as Tejpal follows her.

In a recent case ( Lalita Kumari vs Govt. of UP and Ors. ), the Supreme Court has held that Section 154(1) of the Code of Criminal Procedure (CrPC) mandates that if any information is given to a police officer regarding the commission of a cognisable offence, he is bound to register it as an FIR. A significant amendment to the CrPC by the new rape laws makes the police accountable for not registering an FIR. S.166A, CrPC, states that if a public servant (policeperson) fails to record information given to him regarding molestation (Section 354, IPC) and rape (Section 376, IPC), he shall be punished with up to two years of imprisonment. Thus, the police in Goa rightly registered an FIR. Cognisable offences are serious crimes, which are prosecuted by the state since the crime is supposed to have been committed against the state. It is true that many cases of rape do not result in conviction if the complainant decides not to give her statement in support of her case. Complainants have been known to do this for a variety of reasons, ranging from inability to pursue the case to being persuaded/ threatened by the accused and his agents. Sometimes, the accused offers compensation to the victim and her family to settle the case. However, this does not mean that cognisable offences need not be registered. The woman’s agency comes into play only when she has to make a statement in support of her case. The Vishaka guidelines, in fact, made it obligatory on the part of the employer to report the sexual harassment to the police if a criminal offence had been made out.

Lack of internal committees

Another issue that arose during the Tejpal case was the fact that Tehelka, and indeed many media houses, had not set up internal complaints committees in pursuance of the Vishaka guidelines. The Vishaka guidelines were meant to provide additional civil remedies in the workplace against the perpetrators of sexual harassment apart from the criminal proceedings which would anyway apply if the act of sexual harassment amounted to an offence under the penal code. The absence of internal complaints committees meant that there has been no redress mechanism for women employees in several media houses even after 1996.

The government also came in for sharp criticism for not putting into operation the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It has failed to make the Rules and notify the Act. Though the Act is faulty in some critical areas, it makes it mandatory for employers to constitute internal complaints committees to look into all cases of sexual harassment in the workplace. Only establishments with fewer than 10 employees are exempt from this. The Act also envisages a situation in which the offender may be an employer, as in the Tehelka case. This would, in almost all cases, make the independent and impartial functioning of the internal complaints committee impossible. The Act mandates that a local complaints committee be set up in every district to hear complaints of sexual harassment against the employer and from establishments with fewer than 10 workers.

Apart from this, the Sexual Harassment Act not only casts an obligation on the employer to provide assistance to a woman to file a complaint under the IPC, but also makes it a duty of the employer “to cause to initiate action” under the IPC against the perpetrator. Section 13 of the Act provides for action against sexual harassment as “misconduct” in accordance with the provisions of service or other rules governing employees. It further provides for payments to be made to the complainant for the mental trauma, pain and suffering caused to her and for medical treatment and the loss of career opportunity, if any, owing to the sexual harassment. Section 15 of the Act also states that the income and financial status of the respondent should be kept in mind. If the Sexual Harassment Act had been notified, the victim in the Tejpal case could have proceeded under this section. However, the Act also includes a clause which seeks to punish false and malicious complaints. Though the Act mentions that mere inability to substantiate a claim would not be punishable, it has been pointed out that the presence of this clause will inevitably deter women from making complaints as in almost every complaint of sexual harassment, the perpetrator seeks to establish that the complaint is false. Thus, not only should the Act be notified, but certain essential amendments to the Act should be brought about.

The Tejpal case shows how the new amendments in the rape law can be used to deal with violence and sexual assault. We now only have to wait for the law to take its course and justice to be delivered, hopefully within the two-month period stipulated by the new amendments. The case also highlights the denial of justice due to the non-implementation and non-enforcement of a law like the Sexual Harassment at the Workplace Act.

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