Tejpal returns to the Supreme Court

One of India’s most contested rape cases, the Tarun Tejpal matter, has reached the Supreme Court after 13 years of trial, a deeply flawed Sessions Court judgement and a High Court conviction under challenge. As the first high-profile case to be governed by the country’s amended 2013 rape laws, it predates the #Metoo movement and has created deep fissures within progressive media.

On 6 November, a Bench of Justices M.M. Sundresh and P.B. Varale dismissed Tejpal’s plea for interim bail while agreeing to hear his appeal against conviction by the Bombay High Court. The State of Goa was granted leave to petition for enhancement of his sentence. Senior advocates Kapil Sibal and Siddharth Agarwal appeared for Tejpal while Solicitor General Tushar Mehta appeared for the State of Goa.

We revisit the history of the case, its central evidentiary contentions and two larger questions it poses for the Indian legal system on digital evidence and sentencing in rape trials.

Background to the appeal

On 30 November 2013, the former editor-in-chief of Tehelka magazine, Tarun Tejpal, was arrested on charges of rape and sexual assault. The FIR was registered suo moto by the Goa police after the Women’s Commission took cognizance of media reports of a leaked email in which a 27-year old employee sought internal redressal of the incident which occurred during a company event. Released on bail after seven months, Tejpal challenged the trial court’s framing of charges and sought to quash the FIR.

In August 2019, the Supreme Court dismissed his plea and directed the Sessions Court to complete the trial within six months. Following delays due to the Covid-19 pandemic, 18 rounds of cross-examining the complainant, and examination of over 70 prosecution witnesses, the Mapusa District Court acquitted Tejpal on 21 May 2021.

Five years later, Tejpal was convicted by a Division Bench of the Bombay High Court which pulled up the trial court for allowing the defence to “harass and humiliate” the complainant. The Bench emphasised the irrelevance of her sexual history and moral character, a principle that was expressly addressed by the Supreme Court in Aparna Bhat v State of Madhya Pradesh just a few months prior to the acquittal.

Tejpal appealed to the Supreme Court which issued notice on 25 September.

The evidentiary value of conflicting narratives

Central to the evidence against Tejpal are his two emails of apology and the complainant’s own testimony. Critical public opinion by senior lawyers and filmmaker Vishal Bhardwaj’s proposal to create a Rashomon-style film on the trial mark a dangerous tendency to discredit complainant testimonies as merely one version of the story. This approach conveniently obscures the fact that courts have laid down strict standards by which complainant testimonies are assessed before being relied upon as evidence. This scepticism is strangely invoked primarily for sexual offence trials although complainant testimonies also form the basis for conviction in theft, assault and murder cases as well. Our dataset of 10 cases that use the phrase “sterling quality” to assess complainant testimonies depicts the evolution of specific legal standards of consistency and resilience that move far beyond arbitrary consideration of one person’s word against another’s. The complainant’s testimony was considered as the sole basis for conviction in only four of these cases.

Notably, the Bombay High Court judgement not only evaluated the complainant’s testimony as one of “high quality and calibre”, it also rests on a glaring omission in the defence’s narrative of having mistakenly exited the lift on the first floor and proceeding to the second floor to deliver a message to a chief guest at the event. The defence was unable to explain why, upon exiting on the second floor, they descended by staircase without attempting to approach the chief guest’s room.

“Surrounding circumstances” and personal data

The brutal and unnecessary cross-examination of the complainant was largely premised on two years’ worth of WhatsApp chats, photographs, emails and other material from her personal phone.

On 16 January 2015, a Bench of Chief Justice H.L. Dattu and Justice A.K. Sikri directed the prosecution (State of Goa) to hand over “all relevant documents” to Tejpal’s defence counsel as essential to his right to a fair trial under Article 21. This included unedited CCTV footage of the hotel (on which Tejpal’s defence of alibi was based) as well as cloned data from the complainant’s phone. The Order refers to the data “as contained” in the trial court’s order of March 2014 which records Tejpal’s request for phone data between 7 November 2013 and 31 December 2013. Despite the limited request, Tejpal’s team ultimately gained access to cloned data from the phone far beyond what was approved by the Court.

Advocate Ratna Appendra told the Supreme Court Observer that the crux of the problem in this case is the lack of comprehension of what is or isn’t relevant to an incident of rape. Corroborative evidence is meant to prove the “surrounding circumstances” referred to by the complainant in her testimony and ought to be limited to events just prior to or after the incident. Appendra explained that police often fail to specify this to laboratories and do not exercise their power to withhold irrelevant material from the prosecution.

In the aftermath of the 2021 acquittal, Senior Advocate Jayna Kothari observed that the case sets a dangerous precedent by permitting a digital strip search of the complainant. Other countries like the United Kingdom have expressly prohibited “full digital data downloads” but in India, the matter remains unresolved.

Given that the complainant was also a journalist with Telheka which frequently investigated state activities, unfiltered access to her phone is not only a breach of privacy but also of her right and duty to protect her sources. With the Court yet to decide on a 2022 petition by the Foundation for Media Professionals seeking concrete guidelines on search and seizure of digital devices, the Tejpal matter exemplifies the damage being done by this lacuna in Indian law.

Maximum punishment? 

Under Section 376 of the Indian Penal Code, 1860 (IPC), the offence of rape is punishable with rigorous imprisonment for a minimum of 10 years and a maximum term extending to the remainder of the offender’s natural life. As Dr. Mrinal Satish notes in his 2017 study of rape cases in India, the IPC provides a range of punishment without any principles, guidelines or list of considerations to assist determination of sentence. His analysis revealed that in 80 per cent of cases, trial courts imposed the ‘minimum’ punishment, reflecting what he terms an ‘anchoring bias’ or reluctance of decision-makers to depart from the numerical baseline provided.

Further, stereotypes have influenced sentencing nearly as much as they have influenced the determination of guilt. Aside from the nature and circumstances of the offence, factors considered by the court include the offender’s age; prior criminal record; social, marital and economic status; as well as the survivor’s age; conduct; marital status and relationship with the accused.

When urging for leniency before the High Court, Tejpal submitted that he is 62, a political victim, a husband and a father to two daughters. Familial details are typically considered in light of economic dependence and the impact of incarceration on the family’s daily sustenance. In a case like Tejpal’s, the relevance of his family status is unclear. Dr. Satish’s study finds that courts do, however, frequently consider the old age of an accused as a mitigating factor. An aggravating factor in this case is that Tejpal was 23 years older than the complainant at the time of the incident, a friend of her father and in a position of power as her employer.

When considering the question of sentencing, Dr. Satish emphasises that it is particularly relevant to establish the purpose of punishment served. Is it to reform the offender, provide retribution for the survivor, or to deter similar crimes in the future? His recommendation for a Sentencing Commission to draft guidelines for courts to adhere to when exercising such discretion is all the more pertinent as each case raises new concerns for the country’s approach to sexual offences.

Disclaimer: Senior Advocate Jayna Kothari is a Managing Trustee of the Legal Observer Trust, the entity under which SCO operates. Trustees are not involved in shaping day-to-day editorial policy.