Legal aspects of the Tejpal case

BY KUNAL SHANKAR| IN Media Practice | 03/12/2013
The Criminal Procedure Code does not mandate a potency test given the facts of the case. Putting Tejpal through this gives credence to his allegation of a political "witch-hunt".
KUNAL SHANKAR looks at the legal picture emerging.

It has been a political witch-hunt from the word go. Within hours after the news of the sexual assault incident involving the "recused" Tehelka's editor-in-chief Tarun Tejpal broke, Bharatiya Janata Party's spokesperson Meenakshi Lekhi held a press conference demanding his immediate arrest. She called him a "Congress stooge". The stage was set for politicising a terribly unfortunate incident in Indian journalism involving one of the country's best known editors caught in an alleged case of rape.

Mainstream English news channels have done their fair share of lazy journalism by giving the news carpet coverage, virtually blacking out everything else. But to report responsibly, what the media needs to comprehend now with some clarity is the precise legal picture regarding this incident. 

To begin with, Tejpal did not have the choice of merely "recusing" himself from administrative duties. Recusal is for those sitting in judgment of an issue on which they may exhibit bias or face such allegations. It does not amount to stepping down or becoming unable to wield the powers at one's disposal. In Tejpal's case, he is the accused himself. He has no other option but to cooperate with the Goa police investigation into the charge of rape against him.

The expanded definition of rape as incorporated into law by way of the Criminal Law (Amendment) Act, 2013 includes ‘insertion to any extent, any part of the body, not being the penis, into the vagina against her will’. And if you go by the complaint letter written by the aggrieved woman journalist to Tehelka’s managing editor Shoma Chaudhury, the act could be construed to be rape.

It is unfortunate that the graphic and detailed letter meant to be in confidence is now public knowledge. It will now be in permanent public memory, and going by the pace of events, go on to become an incident that will be remembered as a case of sexual assault involving a prominent editor and how the entire media fraternity reacted to it. It is not probably what the young journalist would have wanted, but there it is.

Chaudhury’s defence of her role and action taken is commendable and questionable at the same time. While extracting an “unconditional apology” even before hearing Tejpal’s version is welcome, there ought to have been a committee in place as per the recent Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act enacted earlier this year. The Act incorporates the Supreme Court’s 1997 Vishaka guidelines and makes the committee's recommendations binding on the management. The woman journalist's complaint should have been placed before such a committee right when it was received and not after she expressed dissatisfaction at the management’s actions. Chaudhury has admitted it to be a lapse, but saying that the complainant had not expressed her desire earlier is indefensible. Most media organisations in the country, including many that have interviewed Chaudhury on this incident do not have this mechanism in place. They should now follow suit. 

The in-house complaint mechanism itself is only a civil measure. Section 19(h) of the Act now requires the employer to inform the police of a criminal offence if it is apprehended. Lawyers argue that Shoma Chaudhury's failure to do so can even attract a civil case against her. 

The government has dragged its feet on formulating the rules to be followed under the Act that was notified in the Central Gazette on April 22 this year. This puts the police and the investigating authorities in a piquant situation as the rules would state the procedure to follow from the time of the receipt of a complaint to the point of investigation. This means any sort of action against Chaudhury would be difficult under the current circumstances. 

Chaudhury’s initial position of unwillingness to cooperate with the police investigation smacks of either double-standards or just sheer ignorance of the law. If she has assumed that non-filing of a police complaint by the victim/survivor means there is no need for cooperation, she is mistaken. Rape or sexual assault is a cognizable offence. They are considered crimes against society and not just an individual. The police only need information from any source and not a formal complaint of the incident to file an FIR or even initiate an investigation. It is well within the police’s powers to summon witnesses and collect material evidence. In fact, the Investigating Officer assigned to the case also has powers to compel witness cooperation.

Rape is also not a compoundable offence in India, meaning there cannot be an out-of-court settlement between the parties. It has to go through the process of regular investigation and prosecution. It is at the time of sentencing that the mitigating factors could be considered for the grant of a reduced jail term.

The Goa police's actions are however, questionable as well. By the victim' own admission, there wasn't 'penile penetration' and neither has Tejpal fielded impotency as a defence. The Criminal Procedure Code does not mandate a potency test given the facts of the case. Putting Tejpal through something like this would not only be humiliating for him, but it also gives credence to his allegation of a political "witch-hunt". 

Tejpal will have to be given an opportunity to defend himself. If he has a “different version” to tell, he can place before the police and the trial court. Either party to the incident can seek an injunction from reporting any further the course of the investigation. 

Where Indian law is still lacking is a victim-based approach to sexual crimes. There is no statutory provision for trauma care for victims that could enable them to make informed decisions. This is despite the advances made after the Delhi gang rape and the proposals of the justice Verma Committee report that have been incorporated into law. It is time India follows countries like South Africa, Canada and other Commonwealth nations where such practices have been evolved.

While an analogy cannot be drawn between the 2G spectrum scam and the incident at hand, the treatment of those accused is noteworthy. Never in the history of Indian judiciary were people holding high office, a person no less than a former Union Telecom Minister, held in custody for over a year, for fear of tampering with evidence and influencing witnesses. A. Raja, and 12 others were charged with crimes ranging from misuse of power, criminal conspiracy and allegations of kickbacks. In the present case, Tarun Tejpal has also been holding a powerful office of a well respected media publication – one that has been seen as an example of investigative journalism that exposed the loop-holes in India’s arms procurement process and incidents of match-fixing in cricket. The presumption that he could wield influence over the course of the investigation cannot be called unjust. His "close relative's" visit to the woman journalist's home will naturally be viewed as an attempt to circumvent the investigation and broker a settlement. 

In the end, the incident is a tragic blow to journalism itself. The journalistic fraternity rightly feels rather torn about it. Several feel sorry for Tejpal, a man seen as a trend-setter in investigative journalism who set-up the magazine against “insurmountable odds”, as he says in his letter of “atonement”. They naturally want justice to be done for the young promising journalist and for Tehelka as an institution on the whole. 'Almost always people in power seem to disappoint' wrote veteran journalist Kuldip Nayyar in his autobiography. At least we in the media should set an example by adhering to the principles we seek to uphold. The law encompasses our omissions and commissions as well.

Kunal Shankar is an Associate Editor with New Generation Media, owners of Tamil news channel Puthiya Thalaimurai. He was previously the Chief Legal Correspondent for Headlines Today and Newsx.

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