Prem Shankar Jha

New Rape Law Raises Some Fundamental Issues

A year ago, a judge of the supreme court issued a quiet warning, in the author’s hearing, that making the new rape law too stringent could defeat its purpose by making conviction even more difficult to obtain than it already is. Data published in the Times of India in February, recording a decline in the rate of conviction in rape cases in 2013 have begun to vindicate his foreboding. The case of rape lodged by the Goa police against Tarun Tejpal. The founder-editor of Tehelka, will be the first to be prosecuted under the new law on rape. Since it will set judicial precedents that will bind judges in similar cases in the future,it is imperative that lawyers, judges and policy makers subject its application to the strictest possible scrutiny.

Two sets of issues are raised by the way it has been framed and handled so far. The first is the conformity of the law with the principles of natural justice. More specifically it raises three questions: is it justified to club everything from an indecent sexual proposal to the forcible violation of a woman’s most private self under the single, frighteningly emotive rubric of ‘rape’? Can a defendant be allowed to unknowingly incriminate himself? And can a defendant be tried twice for the same crime?

The second is the conformity of the investigative procedure to the principles of fairness and equity. More specifically, do the police and the courts treat the defendant as innocent until proven guilty, even when the burden of proof rests upon him? Do they therefore respect his right of habeas corpus and seek to deny these to him only in exceptional circumstances? Do they adhere to the principle of full disclosure when they gather evidence, or do concealment and surprise become weapons for obtaining a conviction? How the courts ensure that these principles – of justice, equity and fairness – are safeguarded will determine the shape of Indian justice for years to come.

Treating unwelcome verbal and physical sexual advance on an equal footing with the brutal act of rape can only happen when the law makers do not have a feel for the language in which they work. The difference this can make was highlighted 22 years ago during the confirmation hearings of current US Supreme Court Judge, Clarence Thomas, who was accused by a junior lawyer in his chambers, Anita Hill, of making frequent offensive, and sexually loaded remarks to her. Thomas was publicly humiliated, and came within a hair of being rejected, but even his most determined opponents did not suggest that what he had done to Anita Hill could be described as rape.

As for the issue of self-incrimination, it is obvious from the tit-bits the Goa police has released to the media that the prosecution’s case relies almost entirely on Tarun Tejpal’s letter of apology to the ‘victim’. That letter was neither a deposition nor a confession, but was a private correspondence between him and her. It was not written or signed before the police, let alone recorded by a magistrate. Is it even admissible in court? Can any self respecting system of justice allow a defendant to incriminate himself for herself? These questions need to be asked because, while the details of the law differ from country to country, the repugnance to self-incrimination is universal wherever the Rule of Law prevails. Self-incrimination, except in the form of a properly recorded confession, is expressly forbidden in the US under the Miranda Act which requires courts to throw out any statement from a defendant that has not been prefaced by an explicit warning that anything the defendant says can, and will, be used in a court of law.

The third question, whether a man (or woman) can be tried twice for the same offence, arises because the ‘victim’ did not seek redress in court. Instead she chose to do so through an in-house process in which she appealed to the managing editor, Shoma Chaudhuri, to be the judge. Chaudhuri heard both sides, took a decision in favour of the plaintiff and awarded a punishment to Tejpal that she felt was appropriate to the crime. Tejpal’s public apology and the humiliation he suffered, was part of the punishment. The victim was within her rights to consider the punishment too light, and to say so in as many words. But, as her emails clearly show, she also stated that she wanted a ‘closure’ of the issue through the in-house process that she had set in motion.

In rebuttal it can be pointed out that all countries allow a defendant to be tried for the same offence twice, once under civil and a second time under criminal law. In Tejpal’s case it can be argued that the in-house procedure was a civil one, while the case launched by the Goa police is a criminal one. But it can as easily be argued that the offence he is charged with is criminal and not civil. Describing sexual molestation as a civil offence because it was not adjudicated in a court and not prosecuted by the police is stretching the definition of ‘civil’ way too far.

The new law has yet another disturbing feature: It allows the publication of the name and alleged misdeeds of the defendant but forbids disclosure of the name and antecedents of the plaintiff. While the guarantee of anonymity is intended to give women the courage to speak out, as the decline in rape convictions last year shows it may also have bred a degree of irresponsibility.

This asymmetry also creates a presumption of guilt that not only allows the prosecution to create bias through the media but also take liberties with investigative procedure that would not have been in a case where the defendant is presumed to be innocent until proven guilty and can advance his or her version of events through the media too. The Goa police and magistrates’ handling of Tejpal is a case in point. The Goa police denied Tejpal bail repeatedly on the plea that it needed time to collect evidence. But the charge-sheet shows that the two key pieces of evidence upon which its case is built – Tejpal’s letter of apology and the CCTV film from the hotel, have been with it from the first day of the investigation.

The police also claimed that Tejpal had to be kept away from witnesses because a member of his family had already tried to intimidate the victim and her mother. But Tejpal’s lawyers claim that even if the Goa police accepted this allegation when it was first made by the ‘victim’, it soon found out that it was false because on the evening of the alleged intimidatory visit the ‘victim’ had sent an email to Tejpal’s daughter, her close friend at that point in time, thanking her for visiting her and her mother earlier on the same day.

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