Following the unfortunate gangrape incident of December 16, the whole country was in one voice that crime against women should be tackled with strictness and laws against such crimes should be made more stringent and enforced with fear or favour.

The Justice Verma Committee which was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women, submitted its report on January 23, 2013.

Following the report, sweeping changes were made to the Indian penal Code vide the Criminal Law (Amendment) Act, 2013. Some of the offences relevant to the present discussion as introduced by the 2013 Act are as follows:

1.    Section 354A was introduced making sexual harassment a punishable offence, which includes (i) any physical contact and advances through unwelcome and explicit sexual overtures, (ii) saying sexually explicit or colored remarks, (iii) any demand or request for sexual favours and (iv) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Sexual harassment punishable with rigorous imprisonment up to one to five years, or with fine, or with both.

2.    Section 354B was introduced making any contact with intent to disrobe a woman a punishable office. The definition of such acts includes assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked. This offence is punishable with imprisonment between three to seven years and with fine.

These offences are in addition to Sections 376 (which makes rape punishable) and Section 354 (which makes any action with an intent to outrage the modesty of a woman punishable). In the erstwhile crime against women jurisprudence, reliance was placed on judgments of the Court interpreting sexual harassment within these provisions until Sections.354A & 354B were added to the Indian penal code defining sexual harassment and attempt to disrobe a woman.

A very elementary and layman’s understanding of rule of law would distinguish between a ‘dispute’ and an ‘offence’.

A dispute remains in the private discretion of the aggrieved/disputing parties laying no boundaries for either party to pursue the legal process and seek justice till its logical end or to simply settle the dispute at any stage or even for that matter to simply abandon or drop/withdraw the legal proceedings, The discretion of parties in a dispute is absolute, subject only to the due process of law required to be followed while exercising such discretion.

However, in the case of an offence, such a discretion is absent. All actions which are a wrong against the society are classified as ‘offences’ and made punishable as such in various laws, principally the Indian Penal Code. Therefore, in case of an ‘offence’ it is the state that pursues the case, not the wronged/victim/survivor. The state has a fully structured law enforcement system to prevent commission of ‘offences’ and a full fledged criminal justice system for the trial of the ‘offences’.

Even the cost of litigation/court fees is borne by the parties to a ‘dispute’, whereas in case of an ‘offence’, the state incurs the cost of investigation, trial and sentence of an accused.

Prima facie, the allegations of sexual harassment leveled against Tehelka editor-in-chief Tarun Tejpal appear to be alleged offences Sections 354A & 354B of the Indian penal Code. 

Any attempt to confuse this ‘offence’ allegedly committed by Tejpal to instead be a ‘dispute’ or misunderstanding between him and his junior concerned is far from correct and has the potential to derail the objectives behind introduction of these offences under the 2013 Act.

Should the law be applied differently because this time around the accused is a famous personality?

Should the initiative of internal enquiry by Tehelka and the simultaneous apology by Tejpal be viewed as an effort to bring justice to the survivor or an attempt to save Tejpal being subjected to the criminal proceedings owing to the alleged offences he has committed?

Can even a pardon by the survivor come to the rescue of Tejpal to avoid facing criminal investigation and maybe, criminal trial thereafter?

My take would be in the negative.

The law cannot be applied differently irrespective the person facing the criminal system for an alleged crime.

Tehelka is free to inquire and mete out any punitive directive against Tejpal to protect its own reputation or to pacify its team but that cannot come in the way of Tejpal facing criminal investigation.

As discussed above, the survivor does not have the discretion to settle or forgive such an ‘offence’. Any pardon by her cannot come in the way of Tejpal facing a criminal investigation as well.

The Goa government (read police) is said to have registered a case against Tejpal under Sections 376 & 354 of the IPC. Why has the Goa Government been so selective?

Sexual harassment and attempt to disrobe are specifically set out as offenses and are not included/covered under Sections 376 and 354, which the Goa Government has pressed. These offenses would not be indirectly read into 376 or 354 – now that we have express provisions for them in Sections 354A and 354 B.

Tejpal’s elevator actions, if falling short of rape, could give him a window to fly, contrary to the provisions set out in the IPC owing to Goa government’s unexplained discretion in not pressing charges for the most obvious offences purportedly committed by him.
 
The allegations of sexual harassment and also his purported (physical) actions during his so-called 'lack of judgment' would fall squarely in 354A & B, which have not been pressed, for reasons best known to the Goa police, notwithstanding the open claims of the Goa chief minister of going to the last mile on this.

If Nirbhaya would not have been satisfied with an apology, why should any other survivor of any crime against women be expected to be satisfied with an apology?

Rule of law should prevail and offenders like Tejpal should not allowed to get away simply because they could not make  ‘Nirbhaya’ happen again on the present survivor.

The Goa government and the central government have to live up to and answer the nation on this – people are watching eagerly