NEW DELHI: Tarun Tejpal, the founder-editor of Tehelka, has been charged with “sexual harassment, physical contact, advances involving unwelcome and explicit sexual overtures, rape, rape by a person of a woman in his custody taking advantage of his official position,wrongful restraint and wrongful confinement”. These charges have yet to be proved, but Tejpal has already spent 80 days in jail. He has done so because despite his surrender of his passport and willing cooperation with the police, he has been denied first anticipatory bail, and then bail.

Instead, the Goa magistrate’s court sent him to police and then judicial custody, routinely extended the latter every ten to 12 days and finally rejected his bail petition on January 21 on the sole, unsubstantiated accusation of the investigation officer that he had tried to intimidate her.

Tejpal is by no means the first victim of this gross abuse. In 2000 AD following operation West End, the sting operation conducted by Tehelka, that caught BJP leaders taking bribes from soi-disant arms dealers, the NDA government launched an all-out attack on the magazine—then an e-journal. Among those whom it arrested on trumped up charges of insider trading and share price manipulation was Shankar Sharma, the founder and head of First Global, one of the most dynamic of the new generation of financial companies that was coming up in Mumbai. His crime was that he owned 13 percent of the original share capital of Tehelka.

Sharma too spent three months ‘in judicial custody’ in Tihar jail before being released without any charges being filed against him. During the years of harassment that followed the police raided First Global’s offices 25 times. SEBI forced it to close, destroyed its client and revenue base, and cost its 216 employees their jobs at the height of the 1997 – 2003 recession.

The NDA government’s attack on Tehelka was even more relentless. In 2000, having been caught with its pants down, it did not arrest Tejpal. Instead it embarked upon a slow strangulation of Tehelka that had, by the time the government fell, reduced its staff from 105 to 15, and left Tejpal personally in debt to the tune of a crore of rupee. Even that did not slake the then government’s thirst for vengeance. When, under immense media and public pressure, it set up the Venkataswami commission to investigate the bribery tapes, it included a clause in the terms of reference – ‘term D’ – that required the commission to look into “all aspects relating to the making and publication of these allegations.”

Only the veteran lawyer and columnist A.G Noorani noticed the enormity of its implications for press freedom: “Never in the half-century of the Commission of Inquiry Act 1952” he wrote, “has anybody been asked to probe the credentials of those who made the charge”.“If this move is allowed to pass muster the press will effectively be muzzled. Anytime it publishes an exposé, the government will retaliate by setting up inquiries not only into the truth of the charges, but also into the motives, finances and sources of the journal which publishes them.”

It is against this background of vendetta that the Goa government’s treatment of Tejpal needs to be examined. It is important to remember that the alleged victim did not register an FIR with the Goa police. What she asked for, in not one but two emails to the managing editor Shoma Chaudhuri, was an apology and ‘closure’ of the incident. It was the BJP government of Goa that decided to register an FIR suo moto.

The charge it levelled against him was not of sexual harassment; not of sexual molestation; not even of sexual assault, but of the terribly violent act of Rape. It was able to do so because parliament had changed the heading of “sexual assault”, given to the amendment bill to cover its widened definition of sexual crimes, with the word ‘rape’. This highly emotive word provided the Goa government, and the BJP’s leaders in Delhi, with a convenient mantle of concern for women’s rights and security, under which to re-launch its vendetta against Tejpal.

The timeline of the BJP’s statements and actions, both in Delhi and Goa, exposes the virulence of its campaign. On November 21 when Tarun Tejpal’s apology, and his resignation from Tehelka for six months, first hit the press the Goa Chief Minister, Manohar Parriker, said “ Progress of the inquiry will depend on whether the complainant registers a complaint. Because it is a body offence, the complainant has to have a role. Unless I have a complaint, I cannot prove guilt.”

But it took him only 24 hours to turn turtle: at 2.20 PM on November 22 he told Times Now that ‘a crime was a crime’ and that he had instructed the police to go after the culprit. Three hours later he told the same channel that Tejpal was the culprit. Three days later, on November 25, he made a remark to NDTV that was not only biased but vulgar: “Someone told me that this man (Tarun Tejpal) is saying that it is consensual. I wonder what he must have done within four minutes and that too in a lift.” Two days later he accused Tejpal publicly of being a “ Congress Stooge”. So much for the BJP’s impartiality and objectivity!

What made him turn turtle? The answer is a Facebook posting by Arun Jaitley on November 21. Jaitley not only pointed out that Tejpal could be accused of rape under the amended law, but that managing editor Shoma Chaudhuri could be charged with abetment, pressurising Tehelka journalists and tampering with evidence. He thus laid out all the grounds for the Goa government’s change of heart and the denial of bail that followed. In the next seven days a host of BJP leaders made 19 statements demanding punishment for Tejpal and/or Chaudhuri. In Delhi a BJP MLA led a mob that defaced Chaudhuri’s house and car.

But these public attacks tell only half the story. For behind the smokescreen they have created, the Goa police has also refused to present at the bail hearings evidence in their possession that could have mitigated the accusation of rape and inclined the magistrate towards granting bail. Among the many grounds presented by his lawyers but ignored by the judge, two stand out. The most important is that the CCTV tapes of the Hotel show that Tejpal and ‘the victim’ were in the elevator on the evening of the alleged molestation not for four minutes but two minutes and nine seconds. The second is that the “victim’s’’ accusation that Tejpal’s family visited, and threatened, her and her mother is an outright falsehood. For an email she sent the same evening shows that the visitor was her erstwhile closest friend, Tejpal’s daughter Tiya. The email thanked Tiya for her visit, but it took her only another 12 hours to change her story and claim intimidation. One can only wonder why.

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.