Millennium Post

Tehelka: Why apology won’t do

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 23 January 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 coloured 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.

Should the law be applied differently because this time around the accused is a famous personality? 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 but that cannot come in the way of Tejpal facing criminal investigation.

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