Crimes, Torts, Harassment and other issues in the Tarun Tejpal case
Indian news and social media is on fire with the sexual assault charges against the Editor-In-Chief of the Tehelka News Magazine, Mr Tarun Tejpal. The details are here at Delhi Durbar.
As the story developed, Ms Shoma Chowdhary the Editor of Tehelka is reported to have snapped at some reporter “Are you the aggrieved party”. There were also several tweets by lawyers and journalists who suggested that the victim was free to choose between criminal and civil complaints. This is disturbing on many levels because the contents of the leaked email clearly indicate the possible commissioning of a crime.
The justice system of India and most countries rests on a clear distinction between the “crimes” and “torts”, or simply criminal and civil law. The way these two branches are prosecuted, the standard of evidence, and the punishment are all different. If someone cheats you on a contract or defames you – you should bring a lawsuit against that person with the final goal of getting some compensation. If you and the cheater can come to a deal to avoid a prolonged trial – case closed. All go home happy. It is not possible to send the cheater/defamer to jail as an outcome of the trial, the evidential standard is a lot looser. I am simplifying a lot here, but this is how Tort/Civil cases largely work. There is a laundry list of acts that are classified as Torts.
Murder, rape, assault, are crimes and they don’t qualify for the above process.
Crimes are a different beast altogether. In jurisdictions that have public prosecution of crimes, i.e. almost everywhere, the official plaintiff is not the individual who has been hit, but the people or the “society”. This may seem very unfair to the victim, because there is no redress or restitution. For example : Nirbhaya’s parents would have got nothing at the end of the trial process – but for the ex-gratia provided by the Delhi government. The upside of this arrangement is – you cant buy your way out of a crime.
In my studies on legal systems, I stumbled upon this interesting reason why crimes are prosecuted by the state. I dont recall where I read it, but it goes like this. Start by assuming the opposite, that only the aggrieved party has the right to initiate criminal process against an accused. Also assume that all individuals are equally aggressive pursuing justice when harm is caused to them. Obviously, this fails the test of murder. Because the aggrieved party is dead, there can be no one to hire prosecutors and initiate the process. Lets expand this one step, you can grant that the kin (family) of the deceased can also be considered to be an aggrieved party. Then what happens to orphans ? A system like this will put orphans at great risk because murdering them will invite no prosecution. You can extend this further to say friends and acquaintances, but then what happens to loners, those who recently moved, those who have more enemies ? The real answer is when a crime is committed – it is the entire society that is harmed and the state must bear the expenses of 1) prosecuting the accused and 2) for prison facilities using the taxpayer money. So the basic position can be summarized as this : You cant opt-out of the criminal justice process. In this and other cases, monetary settlement is only one aspect. There can be activism driven pressure and other kinds of indoctrination.
There are libertarian arguments for dismantling the public prosecution altogether and go for a market driven solution. In this scenario,you would buy some kind of “Crime Insurance” so in the event you are attacked you are never short of resources to pursue the aggressor. Seems quite outlandish.
On Shoma’s outburst
If there is information about the commission of a cognizable (a more serious kind of) offence, or if a police officer suspects there to be one, he can take up investigations without any specific complaint. Of course he has to apply his mind to ascertain there is sufficient grounds to believe such a crime has been committed. The Goa Police under Mr Manohar Parikkar is doing exactly this. In case of Torts, she is absolutely right, the public has no right to jump around if the aggrieved (injured) party is quiet. Unfortunately for Mrs Shoma Chowdhury the details available in the public domain point squarely to a crime and not a tort. As pointed out by many on social media – the alleged acts , if true, squarely constitute rape under the new anti-rape laws.
The latest news is that Tehelka has set up a committee to hear the sex harassment case. That is a good development, but the facts in the public domain indicate that the only option for the committee is to turn it over to the police as a formal complaint. Why?
The basic idea is quite fascinating. Say you witness or someone tells you about them witnessing a crime – someone’s hand getting chopped off by a machete. Should you report it to the police ? Will you be legally liable if you keep quiet ? The answer is – you are under no legal obligation to report it. This explains all the Indian movies where villages witness a gruesome crime but no one comes forward to report it. There is one exception however. If you are in a command position : say a teacher, nurse, railway ticket collector, or a committee hearing one class of complaints like sexual harassment. Then you are a mandatory reporter.
Most tragic that people are willing to drop down several rungs to exhume long settled and well understood conceptions of law to deal with specific cases on an adhoc basis.