Reality Check India

Crimes, Torts, Harassment and other issues in the Tarun Tejpal case

Posted in Uncategorized by realitycheck on November 21, 2013

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.

Public prosecution

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 committee

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.

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10 Responses

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  1. hindureverberation said, on November 22, 2013 at 5:06 am

    Reblogged this on hindureverberation's Blog and commented:
    Superb explanation of legal position on Tehelka Editor Sexual Assault case.

  2. Rakesh Babu G R said, on November 22, 2013 at 5:56 am

    Rape in a workplace is still rape. Tejpal should be prosecuted by the state.

    • daktre said, on November 22, 2013 at 12:25 pm

      “Rape in a workplace” you said. Rape anywhere, you mean (I presume).

  3. vikas singh said, on November 22, 2013 at 6:14 am

    the expenses of 1) prosecuting the accused and 2) for prison facilities using the taxpayer money.

    What is this ? of course the state runs the jails.

    • realitycheck said, on November 22, 2013 at 8:33 am

      Yes – I know that. I was trying to explain why it is that things are the way they are.

      Let me explain :

      If crime (assault,rape,murder) was a purely private matter between the victim and the accused – that calls for 1) negotitated settlement; failing which 2) criminal process is invoked. Then why should I as a taxpayer foot the bills for prison just because the negotiations broke down ?

  4. pp_chn (@pp_chn) said, on November 22, 2013 at 12:52 pm

    Were crimes against orphans/loners/movers/others not prosecuted under the native justice systems – Khaps/ Nattaamai?

    /* This explains all the Indian movies where villages witness a gruesome crime but no one comes forward to report it. */ What is the factual basis?

  5. eanker said, on November 25, 2013 at 4:28 am

    But I was shocked that parents are found to be responsible for children lying, maybe even other immoral behaviour.
    http://education.intoday.in/story/parents-guide-against-corruption/1/225409.html

    So should parents be punished for crimes ? Or they should not be ?

  6. Matthew Machin said, on January 29, 2014 at 4:54 pm

    Can you explain please why the bail applications in this case cannot be escalated to a higher court, or are the Tejpal legal team missing a trick. From my standpoint 55 days in custody appears to be excessive and bail (with stringent conditions) should have been granted. Can they go for bail to a higher court?

    • realitycheck said, on February 2, 2014 at 3:05 am

      Hi Matthew,

      Yes, I think he should certainly press for bail. No idea about his strategy but a good guess is they are waiting for the Goa Police to file the chargesheet – maybe next week? as per media reports.

      If police suspects a crime has been committed, they move to arrest the suspect – this situation isnt unique to India. Besides from media reports I do believe they interviewed the victim here.

      Thanks,

  7. Matthew Machin said, on January 29, 2014 at 4:57 pm

    Furthermore i find it bizarre that the defendant was arrested even before the victim was interviewed about the incident. By your submissions above does IPC allow the police officer such wide ranging powers that he can execute an arrest on the basis of media reports about a crime (in the form of a letter in this case). That is a recipe for misuse.


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