Who Wants A Media Trial?

Friends and family of Tarun Tejpal have been alleging that he is the victim of a media trial. On the contrary, it's none other than Tejpal himself who wants the public (through media) to try and declare him innocent, and for this pressure to prevail on the court. And that's why he is using media and social media liberally to sow suspicions about the complainant's politics and her character, her demeanour, her smile and so on. That's why his friends send mails with her photos asking— "Check out her pose! Is she traumatised? No! Is she happy? Yes!" That's why Tejpal says make the CCTV footage public: he wants the general public to be voyeurs, examining the woman, putting her smile, her demeanour, her gait, on trial—ready to declare her guilty if her manner, her gait, her demeanour don't conform to the 1970s Hindi film stereotype of the raped woman jiski izzat lut gayi.

We in the women's movement can only hope that the courts won't behave like the 'court of public opinion.' You see, if a woman is brutalised, and her bloodied body/corpse is available as incontestable proof of her victimhood— in conformity with those Hindi movie images we just talked about— then the courts might hand out righteous death sentences because 'public opinion' so demanded. Might— because here too for a Bhotmange or a Manorama or a Soni Sori, the brutalised body is no guarantee of public opinion or courts perceiving the heinousness of the crime. In other cases— where the rape survivor doesn't have a bloodied body to display to gratify the avid voyeurs, the 'peanut-crunching crowd'— the courts are again all too likely to mirror public opinion and declare that the woman doesn't really look or behave 'raped' enough. Even when the courts appear to be 'sensitive' to women, there's a catch. There is one landmark verdict of the SC which holds that rape convictions can take place even on the 'sole testimony' of the woman complainant. But the verdict actually says that "it is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male" but "a girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred" and therefore isn't likely to lie about rape! The detailed argument in this verdict has sickening sexist imaginings of why 'western' women are likely to lie about rape.

Not surprisingly, this notion of 'chaste Indian woman' vs 'loose westernised woman' is what Tejpal's defence is relying upon. In his bail plea, Tejpal's lawyer quoted this verdict to argue that she could not be raped, the sex must be consensual because the complainant is "a “liberated, emancipated modern woman”.

So, women can only hope— against hope— that the courts will stand aloof from public opinion, and will deliver justice on merits of the case rather than on jaundiced notions about how raped, tightly-bound Indian women are supposed to behave, as opposed to loose, liberated, modern women. Tejpal claims there's no evidence against him, that the chargesheet is flimsy. We don't have to judge him guilty or innocent now. But the charges are by no means flimsy, as he suggests. Rather, there's an embarrassment of weighty facts— straight from Tejpal's own words— enough to make this a very, very serious case.

Tejpal claimed in his email to his friends that the whole thing was "an incredibly fleeting, totally consensual encounter of less than a minute in a lift (of a two-storey building!)." Well, the chargesheet establishes based on the CCTV footage that the lift took much longer than the usual to make the 2-storey climb, certainly much longer than the 'less than a minute' claimed by Tejpal. This unwarranted time in the lift the first time and the footage of him taking her by the arm and pulling her into the lift on a second occasion (a second encounter which his email to friends didn't mention) is certainly grounds for invoking IPC 341 (wrongful restraint), 342 (wrongful confinement).

Moreover, his own 'apology' email established him admitting to invoking his status as her boss— though he claims he retracted it. The very fact that he admits to invoking it to overcome what he calls her 'clear reluctance', goes to show a strong basis for invoking 376(2) (f) (person in position of trust for authority over a women committees rape on such women) and 376(2) (k) (rape of a women by a person being in position of control or dominance over the women) IPC.

And the testimony of several of the complainant's colleagues that she told them immediately after the first episode, that she was assaulted, and of course her own complaint that has remained stable and unchanged from minute one, while Tejpal's has mutated time and time again, are pretty strong grounds for invoking Section 354 (Assault or criminal force to woman with intent to outrage her modesty), 354-A (outrage modesty). Mind you, I say these are undeniably strong grounds for the chargesheet: it isn't for me to judge him guilty or not, I leave that to the court.

Tejpal claims that his arrest is "an early sign of the inherent fascism of the right wing that will target its detractors in the most sinister and underhand ways, using all the government machinery at its disposal. This is a warning shot across the bows of all liberals and opponents of communal politics. It’s a crying shame that a major party that is bidding to rule the great pluralism that is India is imbued with no tolerance of dissenters and critics, of whom I certainly am one.” Well, I know neither Mr Tejpal nor the complainant personally. I know them both from their work as journalists and public intellectuals. And I can say: Mr Tejpal, you don't have to be male and a senior editor to be a 'dissenter and critic' against communal politics. The complainant— a young journalist who has done courageous and forthright journalism— is no less a dissenter and a critic. And we who stand up for her rights, are no less dissenters and critics. And Mr Tejpal trivialises the anti-fascist struggle by trying to use it to demand impunity from accusations of rape. Being a dissenter and a critic doesn't provide us with some kind of AFSPA-type shield to being prosecuted for rape.

Finally, can we please keep the word 'draconian' confined to the laws like AFSPA, MCOCA, sedition and so-forth? The new rape law is not draconian. It very correctly expands the definition for rape and provides graded punishments for different situations of sexual violence; and it very correctly states that consent cant be presumed without a clear Yes by word or gesture by the woman. These are not draconian provisions. Ten years for the compound crimes Tejpal is accused of is not excessive necessarily. 

It should jolt us that one of Tejpal's friends can refer to what he is accused of as a 'mere pass'. Sorry guys. Even a 'pass' is now sexual harassment. And holding a woman against her will in a closed space, disrobing her and forcing your finger or tongue inside her private parts simply isn't a 'pass' — and it's downright scary that some can think of it as such. The same pal of Tejpal's said, chillingly, that if this is rape 50% of editors and CEOs will be in jail for rape. Do editors and CEOs (Tejpal's pal seems to think these are all male) really see it as their entitlement to do these things to their woman employees?! If so, it reminds me of the sense of entitlement that Bihar landlords used to expect as their due from Dalit woman workers in fields in the 1980s. Those bosses who think women have to submit to such treatment must indeed be in jail.

I am willing to discuss, in a general context, the need to retain some discretion for the judge in sentencing— but I'll do so in a context of concern for justice for women, so that courts should not be deterred from convictions, and discretion should not move from the judges to the cops. And I'll discuss these when we have some evidence of the fact that the new law is indeed acting against women's interests in this regard. To use those concerns and debates of the women's movement to paint Tejpal as a victim is abhorrent.

And to those who accuse feminists of defending a draconian law to play 'media darlings':  let's recall that the women's movement has consistently— on the same media— articulated and defended the unpopular positions against draconian provisions of death penalty and lowering of the age of juvenility and raising of age of consent. We have interrupted the media's self-congratulatory narratives on Tejpal or Asaram to remind them of their own double standards on Manorama, Kunan Poshpora, Soni Sori, countless Bastar rapes, rapes of Dalit women in Haryana and so on. The same activists who make use of a few minutes in the media to counter the insidious campaign of vilification that Tejpal and his pals are carrying out against the complainant, have also spoken— again in the face of abuse and hate-speech— against the hanging of Afzal Guru and the conviction of Shehzad in the Batla House case. I am one of the handful of people who have, after carefully examining available evidence rather than the feverish imaginings of a sexist media campaign, questioned the obnoxious, appalling Aarushi verdict, which was a 'media trial' if ever there was one. A secular friend who today accuses me of participating in media trials in the case of 'secular' rape-accused men, was only too happy to repeat the prejudiced misinformation peddled by a media in the Aarushi case, warning me to stick with public opinion rather than my own assessment and conscience in that case! I have also spoken against 'potency tests' for Asaram and Tejpal both— I hold potency tests to be just as demeaning, unscientific and humiliating as 2-finger tests for rape survivors.

What about bail for Tejpal? I believe bail is a right that all undertrials are entitled to— and I along with many others have thanklessly struggled for bail for NOIDA workers, Maruti workers, held on far, far flimsier grounds. Soni Sori got bail after years of incarceration. Many of my own comrades languish in jail without bail— on cooked up charges relating to mass movements led by them. In the case of those accused of heinous crimes, courts tend to deny bail irrespective of how flimsy the charges are— and this is nothing to do with the new rape law, it has been the case for long before last year. So, Tejpal can't claim he's being denied bail because of a political vendetta or because of a 'draconian' law. Rather, if at all he gets bail, it will be because he has a posse of lawyers and he is viewed as 'respectable' and 'respected'— unlike your average worker or slum dweller or common man/woman accused. And if he gets bail, I would not oppose it.

These very phrases 'media darlings', 'BBM-ing feminists' and so on are themselves redolent of rank sexism. We do the cause of democracy and secularism a grave injustice by resorting to this manner of campaign. Tejpal is entitled to a defence, surely. But we cannot allow the complainant to be subjected to a moralistic, voyeuristic pillory on the pretext of his defence. She is being put through hell, has had her mindspace and professional world turn from a zone of comfort and achievement into an ugly space of abuse and jeers— not because of her own actions but just because she made the hard decision to complain about rape by her boss. This is the tough, painful world of rape survivors. For those of us who ask why we activists cant remain 'neutral'— well, survivors and complainants get through this hell because they rely on the women's movement to support them through it. So, yes, we are not going to stop supporting rape complainants because the accused happens on occasion to be part of the secular or democratic camp. That's because democracy includes women's rights.

Kavita Krishnan is Secretary, All India Progressive Women's Association (AIPWA) and tweets at @kavita_krishnan