Rethinking the new sexual offences law and the feminist strategies
Anusha Rizvi and Manisha Sethi Delhi
On the night of December 16, 2012, a young man, naked, splattered in blood, stood on the side of a road, waving, in an attempt to stop the cars that whizzed past him. They sometimes slowed down, amazed at the spectacle he offered; however none stopped to help. Close to him lay the mangled body of his female friend, a woman so grievously injured that she could scarcely move. The iron rods that were inserted into her vagina had pulled out her intestines. A few days later, the young girl succumbed to septicemia and multi organ failure.
As the news of this gruesome rape and brutalization spread, thousands of people took to the streets demanding justice for the couple. Faced with the teeming mass of protestors, the government responded by instituting the Justice Verma Committee to suggest legislative changes in rape and sexual offences law. Sifting through thousands of suggestions, the Justice Verma Committee submitted its findings within a month of its founding. In the surcharged atmosphere of those days, its swiftness was saluted. The Cabinet promulgated an ordinance in early February and the Criminal Law Amendments stood passed by both houses of the Parliament by 21 March 2013.
The new law expanded the definition of rape to include non-penile penetration. This signaled the recognition of the full range of sexual assaults, which can violate a woman’s bodily integrity and the fruition of a long struggle by women’s groups for legal reforms.
The new rape law, and feminist strategies around sexual violence cases in recent times, however, requires a larger debate. It would perhaps be wiser to conduct this debate within feminist frames, than to allow the agents of status quo to take over. It is with this in mind that we would like to discuss two cases in particular, the first pertains to the charges of rape against Tarun Tejpal, founding editor of Tehelka; and the second, an allegation of rape against Khurshid Anwar, activist and director of a Delhi-based NGO. Although the nature of both cases is very different, there are striking parallels in the manner in which both travelled some distance in the news and social media before acquiring any legal form and raise urgent questions, which need addressing.
The Tarun Tejpal Case
Tarun Tejpal, Editor in Chief of Tehelka magazine is accused of allegedly raping a junior colleague on the 7th and 8th of November, in two separate incidences, in a hotel lift, in Goa.
The case unfolded in public domain in a series of leaked internal emails, beginning with Tarun Tejpal’s apology to his junior colleague in which he recused himself from the post of the Editor in Chief of Tehelka. Arriving in the inboxes of many people only minutes after it was mailed to the staff of Tehelka, on November 20, it unleashed social media frenzy. Soon afterwards, the original complaint of the journalist sent to Shoma Chaudhury on November 18, 2013, was also leaked online, allowing a large number of people to know in precise detail what Tarun Tejpal stood accused of.
On November 21, Chaudhury announced the setting up an internal complaints committee on sexual harassment in accordance with the Vishakha guidelines – a demand that the journalist had made in her letter to Chaudhury. But by then the nation had erupted in outrage with portions of the emails being tweeted and quoted on national television. Taking cognizance of the media reports, the Goa police swiftly filed an FIR. By November 30, 2013, Tarun Tejpal was arrested and is still incarcerated with his bail plea having been rejected twice.
The Khurshid Anwar Case
Khurshid Anwar, social activist and director of an NGO, was charged with rape committed on a woman in his apartment on the night of September 12, 2013.
Several members of a group called Boond visited the apartment of Khurshid Anwar. After a few drinks a young woman, who was part of the group, started throwing up. Khurshid called for taxis to take the guests home. The woman who had taken ill however was left behind despite Anwar’s reluctance and despite his entreaties to another female member of the party to stay back to take care of her.
What followed over the next few days may be difficult to recreate with precision but rape allegations against Khurshid began to circulate on social media. On November 19, six friends of the young woman accompanied her to Madhu Kishwar, the founder of Manushi, an NGO. She recorded a video testimony of the woman in which she accused Khurshid of spiking her drink, and then raping and sodomizing her. The recording is a lesson in how not to deal with cases of sexual violence. Six friends surround the girl, while Kishwar leads and suggests through out. When a female friend of the complainant says on camera that Khurshid had requested her to stay back with her friend, Kishwar retorts that she had a ‘narrow escape’. A copy of this video testimony was handed over to one of the male friends of the woman who had accompanied her. Thereafter, the video testimony began to circulate.
Through September and October raging arguments regarding the case broke out between various people on Facebook. On November 26, the board of the NGO headed by Khurshid Anwar wrote to the young woman complainant asking whether she stood by her video testimony. They wrote that they had learnt of her allegations from a prominent women’s right activist associated with a Left party.
On 29 and 30 November, Khurshid filed complaints of defamation at the Vasant Kunj and Hauz Khas police stations against those who were leading the Facebook campaign against him.
On December 16, 2013, the first anniversary of the horrifying Delhi rape case, Jia TV aired a show on the Khurshid Anwar case basing it largely on the video testimony. The following day, December 17, India TV broadcast a special show on primetime, in which the activist who had video recorded the testimony participated as a panelist and together with the anchor declared Khurshid a rapist. The woman activist who had complained to the NGO’s board also appeared on this show. She said that the woman complainant had been “discouraged” from filing a complaint claiming this information came to her through “her sources”. She admitted later that she had not managed to make any contact with the woman complainant – even when she appeared on India TV show.
The show also contained clips of a member of National Commission of Women (NCW) watching the video testimony along with India TV reporters. The anchor of the show informed us that the NCW had been handed a copy of the testimony and they had asked for 48 hours to act upon it. The NCW had sent a copy of the video testimony to the Police Commissioner, and by the time the show was aired on the night of December 17, an FIR had been lodged against Khurshid Anwar.
Khurshid watched this show with some friends in Dwarka. The next morning he walked to Vasant Kunj and jumped off the roof of the apartment building, killing himself.
Since both the cases under discussion had a life in the media before any FIRs were filed, it is imperative that we examine the role of the media in the course of these two cases in particular and on gender violence in general.
In the Tejpal case while much of the feverish media coverage was couched in the virtuous language of training the gaze inwards, to hold up the mirror to the profession, but it was quite obvious that this was hardly a serious attempt at self-reflection.
What began with leaked emails soon took an absurd turn when the rape case started getting confused with a case of fraudulent financial dealings. N Ram, chairman of Kasturi and sons, the publisher of The Hindu, in an interview called the Tehelka case “the worst that has hit a news media organization in recent decades. Now there will be closer scrutiny of the ownership of Tehelka, its business and political connections, its dubious and unsavoury ventures that were developed alongside its legitimate journalistic activities.” One can only wonder why N Ram does not consider the Radia tapes the biggest scandal to hit the media? And what precisely does the rape case have to do with Tejpal’s financial dealings? Is N Ram suggesting, by any chance, that if Tarun Tejpal did not have dubious financial dealings, then he would not be a rapist or vice versa.
And then came the obituaries, not of Tarun Tejpal but of the magazine he ran. Sundry commentators tumbled over each other in the race to discredit the magazine by suggesting that it was run on money acquired illegally. What does the Tarun Tejpal rape case have to do with the hundred odd employees of Tehelka? Do our luminous editors feel that an offence committed by an employer should effect all under his employment?
Some commentators went into a tizzy when the Tejpal case broke out, taking to Twitter and Facebook slamming his actions by repeatedly calling him a rapist. Chaudhury’s and Tejpal’s residential addresses were pasted on sites and shown on TV. However when a BJP goon attacked Chaudhury’s house, these serious commentators pretended that they had no role in inciting the lynch mob. In fact they went so far as to condemn the attack.
This was similar to the reactions of those activists who had not hesitated to appear on India TV, speculating on the Khurshid Anwar case, but rushed to distance themselves once he committed suicide. Kishwar immediately posted a clarification on her website stating she had merely recorded the testimony and had nothing further to do with the case; while other activists claimed an even lesser role.
There was an innate desire on the part of the media to situate the Khurshid Anwar case in the instant recall framework of the Delhi rape case. “India TV gets justice for Doosri Damini” was the bold headline that flashed on the screen on the December 17, marking the first anniversary of the Delhi rape case. India TV repeatedly described Khurshid as a ‘balaatkari” and the woman complainant “doosri Damini”. By invoking Damini, and by timing it with the anniversary, was it hoping to trigger a similar revulsion and outcry?
The link to the show went dead after Khurshid’s suicide; however small clips are available on the India TV website, which are archived under ‘Damini’. The portion of the show where Rajat Sharma proclaimed Khurshid a rapist is not available at all.
NK Singh, general secretary of the Broadcasters Editors’ Association (BEA), on a TV show on IBN 7, instead of reflecting on ethics of reporting, defended the media by stating that there is little difference in calling an accused a rapist or an alleged rapist.
We would be naïve to imagine that this newfound activism of the media is a reflection of its gender sensitivity. TV channels practically delighted in repeating the contents of the Tehelka journalist’s email complaint on every bulletin. Some channels went as far as dramatically recreating the episode in the lift as described in the emails of the complainant, while at all times, in some schizophrenic avatar, stressed the need to hide the identity of the complainant. Salaciousness is barely disguised and served as gender sensitivity. Even the more respected media houses are not above it. A lead article in a national daily by the Additional Solicitor General of India, Indira Jaising, was titled “When I tried to move away, he kissed my arm, repeated he loved me: Law intern's charge against Ganguly”.
In fact, media’s activism can have entirely contradictory ends. The institution of the Vishakha Committee at Tehelka was foiled when those who had agreed to serve on it withdrew their consent in face of vicious media attacks. Though one can hardly condone the absence of such a committee at Tehelka, what the media effectively ensured was that it wasn’t formed even after the allegations.
Activists should realize that media can be an uncertain ally, at best, prone to be used opportunistically by both sides. If we choose it to fight our causes, we should also be prepared for a backlash when the TRPs on a particular issue begin to decline. Though Tejpal’s call for CCTV footage that he claims will exonerate him, may appear as odious to us but in a case fought through leaked emails and unrelenting kangaroo courts on prime time, this was to be expected. After all the media trial of this case started with leaked emails and not with his demand for CCTV footage.
At least two and a half months before the Tarun Tejpal case excited the consciousness of our society, a district merely two hours away from Delhi was experiencing what is now being described as violence worse than partition. Independent fact-finding reports indicate that nearly a hundred women were brutally raped during the Muzaffarnagar riots in public spectacles with Bollywood songs playing on loud speakers. Only 6 FIRs have been filed so far, naming 22 accused, out of which just one has been arrested. Under the new law, Article 376 (2) G speaks specifically of rapes committed “during communal or sectarian strife”. This is a definite legal advancement in that it acknowledges the centrality of sexual violence during communal strife. And yet, there was hardly any discussion on this in the mainstream media (Outlook’s “Thread Bared” was an exception). Neither was it seen as a test case for the efficacy of the new rape law.
In November, nearly two months after the beginning of the Muzaffarnagar riots, the Chairperson of NCW, Mamata Sharma, addressing media persons in Jaipur said that although she did not get the sense that rapes had taken place in Muzaffarnagar, however, if the allegations were true, she condemned it. There was no rush to investigate deeper, no return visits, no taking ‘cognizance of’, and of course no filing of FIRs.
Why didn’t the NCW or the police take cognizance of the Muzaffarnagar rape victims, as it did with the Tejpal and the Khurshid Anwar cases? Is it because the TRP-driven TV media will not be interested in it and hence the test case had to be the one that can generate top billing? It maybe good copy but is it a fair choice?
The feminists themselves seemed not to have granted the survivors of Muzaffarnagar the same urgency, satisfying themselves with one solitary statement of condemnation. In the light of the amount of writing generated by the Tejpal and Khurshid cases, one can only wonder why Muzaffarnagar victims were not given the same space in the releases, reflections and rebuttals flooding our newspapers and websites.
The most puzzling aspect of the feminist response to both these cases
In the Tejpal case, some feminists first took the position on national television that Tejpal’s alleged sexual offence need not necessarily end in a criminal case, unless the young journalist so wanted. It was a question of her agency, her choice in deciding the direction of her case should be paramount, and should be respected by all. In her email to Chaudhury titled ‘request for closure’, the journalist had sought an apology and an internal inquiry committee. However, Brinda Karat in a newspaper article called this argument “misplaced” and an “exercise in deception”. Within this logic the agency of someone who alleges rape is inconsequential. A charge of rape once made public must perforce set law into motion. But in taking such a position, are we not transferring the right of women to make a decision about how they wish to proceed with their situation to employers, community, neighbours – eroding their autonomy, limiting their choices, and placing them immediately in the patriarchal protection of the state, regardless of whether they wish to do so or not? Do we want such an all-powerful, all-encompassing state, as feminists?
Karat’s statist approach was indeed critiqued by a statement released by a group of feminists. Curiously however, Chaudhury’s adherence to precisely such a feminist ethic – of dealing with the complaint internally as demanded by the journalist, rather than filing a FIR, was condemned by them as “opportunistic” reliance on the complainant: “It must be stated here that the employer and the police must carry out their duties as mandated by law and cannot make excuses for their breach of law and willful omissions, by citing the complainant.”
What in effect, the statement is saying is this: we alone are bound to the ethic of feminism and will uphold the right of the woman complainant to pursue the resolution she chooses, but will disallow anyone else the same privilege. We are theorists of agency, structure and state; others being employers should however respond “as mandated by law”.
Incidentally, those advocating legal statism and those espousing women’s agency conveniently forgot that there is no legal binding on the employer to report a complaint of such nature to the police. Section 19 (g) of Chapter VI (Duties of an Employer) of the Sexual Harassment of Women at Workplace Act 2013, states that the employer is bound to “provide assistance to the woman if she so chooses to file a complaint in relation to the offence under IPC or any other law for the time being in force.” Further, section 39 (1) of the Code of Criminal Procedure, which lists and outlines the offences, the knowledge of which makes it incumbent upon the person to report it to the police or magistrate. Rape or sexual harassment is not part of this list. The new rape law of the CLA 2013 clearly states that all hospitals, whether private or government should treat the victims of sexual violence free of cost and immediately report the matter to the police.
When the law at least partially recognizes the woman’s autonomy as in the SHWW 2013 Act, or when the CLA 2013 remains silent on it, except when the victim goes for medical treatment, why allow a misrepresentation to vilify another woman? Can the feminist vision afford to be so fractured?
The questions about woman’s agency and law remain just as vexed in the Khurshid Anwar case. The recorded video testimony circulated in the public domain for months. Is it not criminal to circulate videos of a complainant of rape without her permission? Is it not alarming then that a prominent feminist at a public meeting held at JNU, indulgently dismissed the act as “impatience of youth”? Or if she had permitted its circulation, is it not rational to ask why a woman who had consented to recording and then circulating a video that clearly showed her face refused an easier option of undergoing a medical examination, which would immediately establish her allegations of repeated sodomy? The attribution of perpetual victimhood to a complainant of rape is neither ingenious nor particularly feminist.
Guilt cannot be assumed, is the touchstone of jurisprudence.
To begin with, raising questions about the veracity of the complaint cannot be grudged. Every allegation of rape is serious but it will be against all sense of justice to believe that every allegation of rape will necessarily be true. How can every single uncomfortable question bring forth the counter allegation of vilification, defamation, intimidation or invoking other causes such as the racism faced by the students of the Northeastern states, as was done in the Khurshid case. This can only be seen as a cynical strategy to counter the uncomfortable questions being asked about the role that many activists played in the whole episode.
Increasingly, the possibility of a second version in rape cases is being projected as a legal impossibility, a patriarchal and racist offensive. This sense of definitiveness is disquieting. As is the confidence in bulky charge sheets, the weight of which is apparently directly proportional to the evidence it carries.
In the early days of the enactment of the new rape law, women’s groups read the law in a nuanced way, hailing its advances but also shining the light on some of its lacunae. The areas of concern included the continued impunity to army in areas under AFSPA, retention of the archaic “outraging the modesty of woman” clause, among others. Yet today, it is difficult to raise any questions without being labeled a patriarchal backlash. This change of stand is not just inexplicable but also dangerous.
That culpability has to be graded and punished according to the context of the particular case is the basis of all just laws. Even if Tejpal were to be judged guilty by the courts, should his sentencing be comparable to that of a police officer who pushes stones in the orifices of a prisoner under his custody? It is not about Tejpal’s power or about his friends in high places, but simply about grading crime and punishment. Minimum sentencing clauses in the new rape law from the minimum of seven years to a death sentence for repeat offenders are dangerous grounds that need to be navigated with prudence rather than by a blind belief in the intervention of any law.
Too much focus on a single celebrity case will detract from examining the signs of a harsh punitive regime inherent in this law.
The new law introduced four new substantive offences: Sexual harassment, Assault or Criminal Force with intent to Disrobe, Voyeurism and Stalking in the new sections 354 A, B, C, D. Sections on Disrobing and Voyeurism prescribe minimum sentences. One could be jailed up to one year if convicted for passing a sexually coloured remark and up to three years if convicted for making unwelcome physical contact. Like rape, these are cognizable offences, which means that upon complaint, police will be bound to register FIRs and make arrests. This opens up a potential field for its misuse and for corruption to set in. Many of these criminalized behaviors often fall in the grey zone of human interaction – by giving one party the option of going to police has the makings of a draconian law.
Stalking, under this law, has been made punishable by up to three years in the first instance, and five in the second. Stalking is emotionally harrowing, physically threatening and socially embarrassing for women – however, punitive measures may not necessarily be the solution. Stalkers often require psychiatric help and treatment for acute psychotic obsessions. But somehow the ethic of care and affect has been erased from our political practice. Moreover, the prison term without any medical intervention will likely exacerbate the psychiatric problem, not making women any safer.
Increasingly, as a society, imprisonment seems to be our solution for all problems.
Law is dynamic product of evolution moulded by contesting visions of order and justice. Negotiation, bargaining, lobbying, jostling and mobilization often mark this process. The real test for all of us will be when we move beyond one or two high profile cases and TV studios to look at the role of this law in larger sections of the society.
This reluctance to engage with the new law also derives from the anxiety over proprietorship of the December 16 agitation. Despite the fact that the crowds were also made up of blood thirsty hordes, a mythmaking has been underway for some time now that it was a kind of revolutionary upsurge, a sort of Indian Spring, under the leadership of some women’s groups. Even though the law, when it was finally enacted, catered in part to the retributive instinct of the crowd baying for blood – as is evident from the harsh punishments, and the rejection of mercy petitions of several of those convicted and sentenced to death for crimes against women – any concession to this end would also automatically concede that there was more than inherently progressive politics at play.
Discussion on the CLA 2013 needs to move beyond one or two high profile cases to look at its working and role in wider society. Feminism demands and seeks equality in all spheres of life, but we need to reflect on whether the ‘naming and shaming’ smugness, selective outrage, media hysteria, rejection of all alternative views as patriarchal anxiety should be our strategy. Though surely the breaking of silence on sexual violence is welcome, there is a slow erasure of the full range of violence against women – the violence of state, caste oppression, displacement, poverty, hunger – which is worrying. Sexual violence has been fetishized at the cost of invisiblizing all other violence.
Anusha Rizvi is a filmmaker.
Manisha Sethi is Fellow, Nehru Memorial Museum and Library, Delhi.