As I write, Tarun Tejpal, founder-editor of Tehelka and father of the sting operation in journalism, has been in a Goa prison for 20 days, 11 in police and nine in judicial custody. If the Goa police ask for an extension he may spend another 40 days in jail. At the other end of India, in West Bengal, Justice A K Ganguly, a former Supreme Court judge and currently chairman of the State Human Rights Commission stands accused of sexually harassing a young female intern while on a visit to Delhi.
Both the alleged culprits have stoutly denied the allegations . Tejpal has conceded that he went too far but did so because of a misunderstanding that arose out of a fairly prolonged period of consensual sexual bantering. Ganguly has rejected the allegations outright. But in the court of public opinion both men already stand condemned. Many reasons have been put forward to explain this: political vendetta ; unassuaged rage against the rape-murder of Nirbhaya a year ago; and the celebrity status of Tejpal. But at its root it springs from anger at the presumed abuse of a mentor-disciple relationship by the former.
What the prolonged and continuing abuse of women, both at home and work, has made public opinion overlook is that abuse can, on occasion, work both ways: that women can be attracted to powerful men, can feel betrayed when these men do not live up to their promises, and can accuse them of sexual molestation to exact revenge. The duty of the law must therefore be to distinguish the one from the other, for only thus can justice be done. This requires the gathering of evidence that will confirm or refute one of the two versions. It requires the media to refrain from rushing to judgement. In particular it requires lawyers to refrain from themselves breaching the sanctity of the judiciary and leaking court documents to prejudice the case against the defendant.
In the above cases these fundamental requirements of natural justice have been observed only in the breach. One is therefore forced to ask the question: what if the judges have come to the wrong conclusion ? What if Tejpal and/or Ganguly are telling the truth? What if the prosecution cannot furnish corroborative proof that they sexually molested, or made unwelcome advances to their 'victims' ?
The disconcerting answer is that it will not matter. In India, and several other countries where laws have been passed to punish crimes against women, the burden of proof has been consciously reversed: it is the accused who has to prove his innocence. This reversal is bad in principle, but probably necessary to create a level playing field for women in cases pertaining to sex crimes. 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 even 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 , in an email to the managing editor 11 days after the alleged act of penetration . After such a long period, medical evidence of even a far more substantial penetration 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' . The defence will therefore be unable to plead this as proof of consensual sex.
What happens when there is no evidence of molestation or rape, but the plaintiff swears in court that she was coerced? The answer is that the new law requires the judge to believe her. He must base his verdict upon the premise that, in matters pertaining to sex, women cannot lie under oath!
The new act has even blocked the defendant's last line of defence — to allege that the plaintiff has a record of indulging in sexual innuendo or conferring sexual favours upon men, stating explicitly that 'the character of the victim is irrelevant' . It has also expanded the definition of sexual assault to include not only 'physical contact and advances involving unwelcome and explicit sexual overtures' but even a verbal demand for sex. This clause has made even a mention of sex to a woman a dangerous liberty that can send a man to prison.
To call the new law 'draconian' would be an understatement , for what it has done is to fuse accusation and verdict: once you have been accused, you are automatically guilty. This is what the Inquisition did in Spain, and the Salem witch hunt in the US. The new rape law is about to make India a member of this inglorious club.
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