[Goanet-News] CONTROVERSY: Not Justice But Inquisition: The New Rape Law And The Tarun Tejpal Case (Prem Shankar Jha)
The New Rape Law And The Tarun Tejpal Case: Not Justice But Inquisition By PREM SHANKAR JHA Mon Feb 24, 2014 NEW DELHI: After being denied bail repeatedly and forced to spend 80 days in jail, Tarun Tejpal, the founder-editor of Tehelka and father of the sting operation in journalism , has finally been charged by the Goa police, 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”. Two other very high profile persons have been accused of similar charges – West Bengal Chairman of the Human Rights Commission and former supreme court judge A.K Ganguly, and serving Supreme Court judge Swatantra Kumar, but this is the very first case actually being tried under the Criminal Amendment Act ( 2013) on rape. It will therefore set judicial precedents that will bind judges in similar cases in the future. It is therefore imperative that we subject this law, and the way it is being applied in the Tejpal case to the severest possible scrutiny. Several issues immediately spring to mind. The first is whether it is justifiable, under any circumstances, to club together sexual harassment, sexual molestation and sexual assault under the single, frighteningly emotive word ‘rape’. To do so puts everything, from an indecent proposal to the forcible violation of a woman’s most private self, on the same footing. It does not matter that the punishment prescribed for these offences is different. As Tejpal’s case has shown, for the media and the people and, unfortunately, to a considerable extent the courts, the differences between these have been largely eliminated. The Goa government’s decision to charge-sheet Tejpal also brings up two other specific points of law. First, can any self respecting system of justice allow a defendant to incriminate himself or herself? Actual practice differs from country to country, but the repugnance of self-incrimination is universal. It is most expressly forbidden in the US under the Miranda Act which requires courts to throw out any statement that has not been prefaced by an explicit warning that anything the defendant says can and will be used in a court of law. In the Tejpal case, despite the charge-sheet’s 2700 page length, it is obvious that the prosecution is depending almost entirely on his emailed apology to the alleged ‘victim’ to prove his guilt. This was neither a confession nor a deposition, but an apology contained in a private communication. In an AmerIcan court it would not even have been admissible as evidence. Will the courts allow it here in India? Closely connected is another fundamental issue: Can a man ( or woman) be tried twice for the same crime? This question arises because the victim did not seek redress in court. Instead she chose to do it 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 that she felt was appropriate to the crime. Tejpal’s public apology and the humiliation he suffered, was part of the punishment. The Goa government is seeking to use this material, virtually unsupported by anything but the alleged victim’s accusation, to convict him a second time. Then there is the law itself. Like other laws relating to the abuse of women’s rights and persons passed in recent years, the new rape law also transfers the burden of proof from the prosecutor to the defendant. Such laws are bad in principle, but have been passed in many countries because there is no other practical way of levelling the playing field in traditionally male-dominated societies. But the new rape law has carried the reversal to a point where, if implemented as drafted, it will defeat the very purpose of justice. For, once a man is accused, it leaves him with no way whatever of proving his innocence. First it expands the definition of ‘rape’ to include penetration by any object , to any extent. The latter part of this definition makes it impossible for the defendant to adduce medical evidence of the absence of penetration in his defence, for ‘any extent’ could be one millimetre or less. This is reinforced by the absence of a prescribed time limit for reporting a sexual assault. In the Tejpal case, the victim made her first protest eleven days after the alleged molestation. After such a long period the medical evidence of even a far more substantial penetration than what she described in her email would have been hard to find. But this is only the beginning of the injustice enshrined in the law, for the prosecution does not even require medical evidence of forcible penetration to obtain a conviction. The new law says explicitly that ‘lack of physical resistance is immaterial for constituting an offence’. If there is no physical resistance, there will be
[Goanet-News] Goa news for February 28, 2014
Goa News from Google News and Goanet.org Visit http://www.goanet.org/newslinks.php for the full stories. *** Tourists warned as Goa taxi protest turns violent in India - Daily Mail axi-strike-called-off/articleshow/31037901.cmsGoa's taxi strike called off http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNFDAMybSU9LlbcJ6w2ojEmUK_owfQcid=c3a7d30bb8a4878e06b80cf16b898331url=http://www.dailymail.co.uk/travel/article-2568221/Tourists-warned-Goa-taxi-protest-turns-violent-India.html *** Tarun Tejpal's facilities in Goa jail curtailed - Times of India udget-a-tough-taskhand-for-parrikar-_1048693.htmlGoa Budget: A tough task in hand for Parrikar http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNEB5sFlOihHEbB-QJzhnPNYOXx7Fwcid=c3a7d30bb8a4878e06b80cf16b898331url=http://timesofindia.indiatimes.com/india/Tarun-Tejpals-facilities-in-Goa-jail-curtailed/articleshow/31102767.cms *** Goa's travel and tourism body submits pre-budget memorandum to govt - Times of India udget memorandum to the government placing its various proposals to make tourism industry competitive. The foremost being a suggestion to bring to an end the frequent disputes ...a class= http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNH-qNXlQtR4hyISv6HXrE4vLgdu7Acid=c3a7d30bb8a4878e06b80cf16b898331url=http://timesofindia.indiatimes.com/city/goa/Goas-travel-and-tourism-body-submits-pre-budget-memorandum-to-govt/articleshow/31124037.cms *** Sardesai alleges Goa govt's 'parivartan' is for 'outsiders' - Times of India mes of IndiaMARGAO: Accusing the state tourism department of 'policy paralysis', independent MLA Vijai Sardesai said that recent Ola Cabs issue was another instance of the government trying to bring in 'outsiders' in to Goa. This is a Parivartan for outsiders ...a class= http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNGsSyo-1Jb1iu5wlItDw_rkR40XWAcid=c3a7d30bb8a4878e06b80cf16b898331url=http://timesofindia.indiatimes.com/city/goa/Sardesai-alleges-Goa-govts-parivartan-is-for-outsiders/articleshow/31124433.cms?cfmid=1400 *** Goa govt to consider funding tourism projects: Parulekar - Times of India mes of IndiaParulekar made this announcement during his visit to Margao, where he inaugurated the new South Goa district zone office of the tourism department at the South Goa district collectorate on Thursday. This was followed by the laying of a foundation stone ...a class= http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNG8xZRzcePUkrluBKU63ufkcv_0uAcid=c3a7d30bb8a4878e06b80cf16b898331url=http://timesofindia.indiatimes.com/city/goa/Goa-govt-to-consider-funding-tourism-projects-Parulekar/articleshow/31124406.cms *** Rural women shine in Goa Chitra's art residency - Times of India ay 'narrative art residency' in the cut-off villages in Canacona, Cotigao and Sanguem spoke to each of the eight participating women artists in a different way, and they took to their canvases to place on record the most indelible ...a class= http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNFrSBAoBpHxxLjTN_aBVAuE5dM1Jwcid=c3a7d30bb8a4878e06b80cf16b898331url=http://timesofindia.indiatimes.com/city/goa/Rural-women-shine-in-Goa-Chitras-art-residency/articleshow/31124613.cms *** National football: TN leaves it late to sink Goa - The Hindu ub V. Ashok Kumar scored in the injury-time to help Tamil Nadu down Goa 3-2 in a Group 'B' league match of the 68th National football championship for the Santosh Trophy at Siliguri on Thursday. Having secured a 2-0 lead by the 31st minute ...a class= http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNE_JU9xnWQDBVlejzziint1bNXJ9wcid=c3a7d30bb8a4878e06b80cf16b898331url=http://www.thehindu.com/sport/football/national-football-tn-leaves-it-late-to-sink-goa/article5733553.ece *** Goa Football Association bans 5 players for 5 years - Times of India mes of IndiaPANAJI: The Goa Football Association is dealing with cases of assault on match officials with an iron hand. For far too long, erring clubs and players have got away with either a light knock on their knuckles, or a monetary fine, but such punishment is ...a class= http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNEWG3fHBIfyiuP7kqaylMkPjFh-sgcid=c3a7d30bb8a4878e06b80cf16b898331url=http://timesofindia.indiatimes.com/city/goa/Goa-Football-Association-bans-5-players-for-5-years/articleshow/31125073.cms *** Gitesh Khandekar is new NSUI Goa president - Times of India mes of IndiaFor the district committees, Aaron Jonathan Noronha was elected as the president of the South Goa district committee, Fortune Fernandes as general secretary and Akash Gaunkar as secretary. Similarly, Sanito Camilo was elected as the North Goa district ...a class= http://news.google.com/news/url?sa=tfd=Rusg=AFQjCNEOoJ7eTM1UZY1UVxxQMVBOF3XGJwcid=c3a7d30bb8a4878e06b80cf16b898331url=http://timesofindia.indiatimes.com/city/goa/Gitesh-Khandekar-is-new-NSUI-Goa-president/articleshow/31067782.cms *** Exempt manufacturing from VAT, Goa chamber of commerce and industry tells govt - Times of India mes of IndiaPANAJI: The
