By Inderjit Badhwar
Author and editor Tarun Tejpal has spent parts of the last seven years in physical jail as well as in mental purgatory after being accused of sexual assault by a colleague at a literary festival in Goa.
It was the biggest media story of the year. Tejpal was crucified, vilified and damned on the front pages of broadsheets as well as on the covers of news magazines.
As Siddharth Varadarajan, now editor of The Wire, rightly observed in August 2014, sexual harassment and sexual assault are crimes no matter when or where they occur and those responsible must be held accountable under the law.
He excoriated Tejpal’s initial admission of “a lapse of judgment” to the devastating charges levelled against him by the woman journalist as “mawkish and utterly self-serving”, adding, correctly so, that there is surely an additional burden that must be discharged: “that of transparency, fair play and an unflinching commitment to ensuring justice for the victim.”
More than seven years later, and following an elaborate trial in which Tejpal had to answer more than 600 questions hurled at him by state prosecutors, Additional Sessions Judge Kshama Joshi acquitted him of all charges with the astounding conclusion that in this case, Tejpal was the victim of malicious lies and persecution and concocted evidence.
If the judge’s 527-page magum opus is to be relied on — and there is no evidence of any extraneous pressure on her— then should not the standards of transparency, fair play and an unflinching commitment to ensuring justice apply to the “victim” in this case as well?
But there is already a chorus of opinion building up to condemn Judge Joshi’s pronouncement as “regressive”, “salacious”, a judicial assault on the “me too” movement and an example of victim-shaming.
The answer to these critics has come from Cara Tejpal, Tarun’s young daughter, an environmentalist and a feminist who has stood by her father during the entire trial and now holds his hand even tighter as critics attack the outcome of that trial. I reproduce, in full, a letter she wrote last week to Siddharth Varadarajan, along with the latter’s response, to acquaint the reader with the judgment and what the judge actually wrote:
27th May, 2021
Dear Mr Varadarajan,
I am a regular reader of The Wire, and also the daughter of Tarun J Tejpal. I have long appreciated the reportage of The Wire, but am disconcerted by the report titled “Acquiting Tejpal, Goa Court Faults Both Police Investigation and Woman’s Behaviour” published on your website on the afternoon of 26th May. The contents of the report are so selective, out-of-context and biased, that it leads me to believe that the reporter did not in fact read the 527-page judgement, but perhaps simply reproduced content shared with her by the prosecution. If it was indeed fully read, it must not have been read thoroughly, which is understandable given that the lengthy judgement was released less than 24 hours before the report appeared.
The report paints the acquittal of my father as the fault of shoddy investigation and an insensitive judge rather than a result of his innocence and the on-record evidence of omissions, manipulations, and lies of the prosecution and Investigating Officer. The reporter also conveniently missed including crucial sections of the judgement for her readers. These are readers who are not expected to plod through a voluminous legal document, and who depend on your publication for unbiased and essential coverage.
The key evidence in this case is the CCTV footage that documents the outside of the elevator where the rape is alleged to have occurred over a period of 120 seconds in a two-storey block of a packed five-star hotel in Goa in November 2013. The entry and exit to the elevator on both days were described in granular detail by the complainant when she made her allegations. The judgement on this says:
“Further, the evidence in this case, in the form of CCTV footage shows the prosecutrix’s narrative to be a change about the events that preceded their entry and followed their exit from the lifts on both days. The CCTV shows a change to the prosecutrix’s narrative both of the physical circumstances of the moments and of her claims of distress, tears, trauma and resistance.”
It goes on to say on a later page, about day two of the alleged assault:
“It is crucial to note that while in her complaint PW1 has stated that he grabbed her wrist, and pulled her in, the CCTV footage shows that he had not touched her at all. But she not only accompanies him, she first follows him to the lift and then waits alongside him outside the lift while he finishes chatting with a guest…”
The complainant initially claimed that she was restrained in the closed, moving elevator for the duration of the alleged assault by the accused pressing random buttons to keep the lift in circuit. However, the evidence on record finds that:
“… much prior to the cross-examination of the prosecutrix on this aspect there was unequivocal evidence before the Court that the lift simply could not be kept in circuit by pressing buttons on the lift panel
preventing the doors from opening at any floor, as claimed by the prosecutrix in her previous statements…”
Given this debunking, she later changed her version to say that the elevator was halted by the accused pressing a single button. Her unchanging claim, in these various versions, was that the lift doors had not opened even once in this duration. However, the court found that:
“The CCTV footage of the guest lifts of the ground floor clearly shows that the left guest lift (the relevant one) was in motion during the two minutes of the alleged incident of 7/11/2013 and that the doors of the left lift opened atleast twice on the ground floor. As the CCTV footage of the guest lifts of the first floor is destroyed by the Investigating Officer, one does not know how many times the lift opened on the 1st floor…”
The judgement also states that:
“It is crucial to note that the contradictions are often so glaring that the exact opposite of what the prosecutrix is claiming actually happens on screen yet, the IO did not even question the prosecutrix on the same.”
The real weight of this judgement rests on the empirical evidence on record that includes the CCTV footage and the mechanism of the elevator in question. In his only statement issued from Delhi prior to his arrest, on 22 November 2013, my father called for the public release of the CCTV footage available. The judgement takes cognisance of this, and says:
“… the accused immediately on knowing that the FIR was registered made a public press statement that the police should obtain all CCTV footage available so that the truth surfaces, knowing that the CCTV footage would reveal the truth and he would be exonerated.”
Your report could have considered mentioning that this CCTV footage, the “most neutral evidence in the case”, was not supplied to us, the defense, until we approached the Supreme Court. Even then, the clone copy of the CCTV footage was finally handed over by the prosecution to the defense a full two years after the SC directive. As it happens, valuable evidence had disappeared by this time and the court found that:
“…the IO appears to have deliberately delayed seizure of the DVR until 29/11/2013 and in the meantime destroyed the CCTV footage of the first floor of 7/11/2013, thereby destroying clear proof of the accused’s defense.”
Your reporter also took some pains to describe the “controversial remarks on women’s behaviour” by the judge. The remarks quoted here are completely out-of- context and seem to have been reproduced for sensationalism not journalism. The statements that were selected for publication came in the context of the prosecutrix’s own statements on her behaviour that were falsified by the video or photographic evidence in the case records, but this was not reported by The Wire. If in fact one reads the judgement carefully, they will find that the judge has made every effort to preserve the dignity of the proceedings. The judgement glosses over any number of whatsapp messages as these messages:
“…were shown to the prosecutrix as she was suppressing relevant facts and not for proving her character or consent for which the objection was
raised. The said messages are accordingly glossed over”.
Much ado has been made about certain emails sent in 2013 that have repeatedly been labelled “confessions” by members of the prosecution. The judgement clearly and plausibly traces the chain of events and circumstances leading to these emails. The judgement states that:
“However, a bare reading of the alleged personal apology categorically shows that his emails neither implicitly nor explicitly makes any admissions or confessions which PW1 demanded in the apology, or with relation to any other offence with which the accused was charged, and is clearly therefore not an apology but an attempt to assuage any discomfort the prosecutrix might have post facto felt…”
In the near eight years since he was arrested, neither my father nor anyone from our family has made public statements. We have however cooperated fully with the Goa government and the police in the interest of a fair trial, despite the immense emotional and financial stress it has caused us. In this time we have been subject to a vicious media trial, and the intense ire of activists and citizens, none of whom have ever seen the evidence on record as the court proceedings were held in-camera as is the norm in such cases.
As a woman and activist myself, I was and am dejected to see activism that has been directed entirely by outrage, and not the spirit of inquiry and the pursuit of truth. I am also aware that the solidarity statement made prematurely by the Network of Women in Media, even before the release of the judgement, was not endorsed by all members. There is no doubt that women across India and the world face challenges and violence that are unimaginable to men. However it is unconscionable to sacrifice the truth in the hope of making “an example” out of an innocent person.
The binary in this and in all cases of justice, universally, ought to be truth and lies, not man and woman.
As a rare independent media house in India, I am sure The Wire has felt pushback from the state on innumerable occasions. It is thus surprising to me that The Wire has not taken a critical view of the trajectory of this case and the role of the state. It may be noted that not only did the Goa government file a suo moto case of rape against my father, but it instated an Investigating Officer who is also the official complainant in the case, in breach of all norms. Not only did the former Chief Minister Manohar Parrikar make undue comments on the case, the current Chief Minister made a public statement that the state would appeal the judgement in the High Court, mere hours after the verdict and prior to the written judgement even being released. Does it befit a Chief Minister of a state to be targeting an individual, questioning the court, and committing state resources to an appeal without reading the judgement?
It is no secret that my father’s journalism career has set him at odds with the ruling party since 2001, and the malicious intent of the police and state in this prolonged trial is difficult to ignore. (For example, in order to deny him bail in the HC in 2014, an FIR was filed against him for conspiracy to break out of jail and help other prisoners escape!) This malafide intent is most visible in the destruction of evidence and the prosecution’s complete omission of perhaps the only contemporaneous witness in the case. The judgement notes:
“ N was the first person, the prosecutrix met virtually minutes after emerging from the lift post the alleged incident of 7/11/2013, a fact which the prosecutrix completely hid during the investigation, and in her evidence before this Court, despite the crucial role that a nearly contemporaneous witness plays in any investigation.”
“It is also very important to note that despite there being a reference to N being the first person the prosecutrix had met, in her draft complaint of 16/11/2013, a reference which she later deleted, the IO did not do any investigation…”
The said witness was ultimately called upon by the defence.
The judgement is 527 pages long, and it is not my intention to regurgitate the entire document to you via this email. An impartial reading of the judgement will show that the judge has appreciated and addressed all the evidence brought to court, by the prosecution and the defense (prosecution: 71 witnesses; defence: 4 witnesses).
I was 23 years old when this case was registered and have spent every day since then believing in my father’s innocence but holding my tongue until the facts could be laid out in the courtroom by a judge. Throughout this letter I refer to my father as “we” because the impact and damage of the accusations have been felt by every member of our family, not just him as the accused (and now acquitted). In the intervening years my family and I have faced innumerable indignities, including being labeled “rape apologists”, violations of our privacy, and the abject disregard of our rights. Additionally, the unwarranted and despicable harassment of members of my family and some friends on social media screams of a vigilante cancel culture that has crossed all boundaries of reason and decency. There is no power on earth that can return the past eight years of lost opportunities, energy, resources and time to my family.
As I write to you, on the afternoon of May 27, I am made aware that no less than the Solicitor General of India is appearing on behalf of the Goa state at the High Court. Please take a minute to appreciate that the second highest law officer in the country has been summoned to appeal against the verdict of the court. Is this judgement truly amongst the most pressing legal issues in a country that is currently being crippled by a pandemic? The subtext is for all to read and infer.
I am aware that you are a mentor to the prosecutrix’s husband, but write to you in the faith that The Wire truly stands for what it advertises: “let’s give them the facts”, not “let’s give them selective facts that suit the narrative we are comfortable with”. If you choose to publish this letter, I request that you do so in its entirety.
Thank you for your time, Cara Tejpal
Siddharth Varadarajan to Cara Tejpal
28 May 2021
Dear Cara Tejpal,
The story you refer to was indeed written without reference to the text of the judgment, which we did not have, but its summary, and was put together from reports in Bar and Bench and Indian Express.
Now that the judgment is widely available, we shall, no doubt, be carrying detailed pieces on it.
The second half of our story has lawyers’ reactions to the judge’s bizarre comments on the post-event behaviour of the survivor.
Your suggestion that our report relies on details supplied by the prosecution is wholly incorrect.
You say, “The report paints the acquittal of my father as the fault of shoddy investigation and an insensitive judge rather than a result of his innocence and the on-record evidence of omissions, manipulations, and lies of the prosecution and Investigating Officer.”
In fact, our report does no such thing and offers no editorial assessment of Tarun Tejpal’s innocence or guilt.
The headline itself is self-explanatory: “Acquiting Tejpal, Goa Court Faults Both Police Investigation and Woman’s Behaviour”.
These are both accurate statements: the court did fault the police investigation and it did fault the victim’s behaviour.
The story itself notes what the judge said about the CCTV evidence and her criticism of the police, and says clearly, “The court concluded that the prosecution had failed to discharge the burden of proving Tejpal’s guilt beyond reasonable doubt and, therefore, acquitted him.”
Siddharth Varadarajan Founding Editor