Dignity, Data and Privacy: An evaluation of State of Goa v. Tarun Tejpal from a privacy perspective

The allegations date to November 2013, wherein Tarun Tejpal allegedly assaulted the survivor on two separate occasions inside a hotel lift in Goa. The victim confided in colleagues that same night, and a week later emailed a complaint to Tehelka’s Managing Editor, seeking an apology and an internal inquiry. Tejpal replied with two apology emails before the matter went public and an FIR was registered.

The trial court acquitted him, but it did so not on the core facts, but on its own reading of the survivor’s character and morality, reaching a conclusion after permitting the annihilation of her privacy at the altar of cross-examination for finding the truth and preserving liberty. But the question is whose liberty, and how? A perusal of the order of the trial court makes the choice unmistakably evident. Faced with a tension between the accused’s liberty and the survivor’s privacy, the trial court chose the accused’s rights at every turn and buried the privacy of the victim. The trial court allowed the defence to trawl through her sexual history and past relationships and treated her composure after the assault as proof that no assault had occurred. It read its own morality into the record and dismissed Tejpal’s apologies as coerced, and converted inconsistencies in testimony given five years later into fatal contradictions.

The High Court reversed the trial court on account of perversity and held that the trial court’s findings ran directly against the evidence and rested on assumptions about how a “real” victim behaves rather than on the record. The High Court demolished the “ideal victim” construct and condemned the trial court for allowing this invasive, humiliating excavation of the victim’s privacy through her purported past sexual history and private WhatsApp messages, and having weighed it all, it found her evidence not merely corroborated but of sterling quality. The High Court held that two emails in which Tejpal apologised for a “shameful lapse of judgment” could not be waved away as coerced, because nothing on record showed coercion, and it is in this setting that the judgment upholds the privacy of the victim. The approach of the High Court on various aspects of privacy: bodily, decisional, and informational, makes it a landmark.

Beneath the evidentiary reasoning, the High Court mounts a sustained defence of a sexual-assault complainant’s privacy: informational, bodily and dignitary, against a cross-examination that treated her past, her phone and her personality as fair game for protecting the liberty of the accused. The High Court holds, squarely, that the trial court committed a legal error in permitting questions about the sexual history, moral views and personal messages of the victim, because those questions breached the statutory embargoes of the Indian Evidence Act, 1872.

The High Court held that the trial court was wrong in allowing questions about the victim’s sexual history, personal choices and private communications where these were being used to attack her character or suggest that she had consented. Such questioning is specifically barred by Section 53A and the proviso to Section 146 of the Indian Evidence Act, 1872.

In reaching this conclusion, the Court relied on State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57, and the principle later reiterated by the Supreme Court that: (i) even a woman described as being of “easy virtue” is entitled to privacy; (ii) no person has a right to violate her person; (iii) she is entitled to the same protection of law as any other woman; (iv) her evidence cannot be disbelieved merely because allegations are made about her character or reputation; (v) even if she has had a habitual or promiscuous sexual life, that by itself does not mean that she could not have been raped; and (vi) regardless of her past conduct or relationships, every woman has the right to refuse sexual intercourse with any person on any occasion.

Thus, what decides the culpability of the accused is the credibility of a victim’s account and never her disposition. The High Court proceeds on the basis that the victim’s private messages could not be used to paint her as a woman of loose character, open to assault, contrary to the rape-shield provisions. The Court makes a victim’s character or past sexual experience irrelevant to consent under Section 376 and allied offences, and applies India’s rape-shield provisions. The logic is simple: a survivor’s sexual autonomy has an informational corollary and her prior intimate life is not just irrelevant, but it is legally off-limits. Failing to enforce that shield was no lapse of courtesy by the trial court; but it was a misdirection that helped make the acquittal perverse. A privacy right built into the law of evidence can reverse a verdict, and in this case it did.

The High Court is blunt about the invasion of privacy of the victim and deprecates years of the complainant’s messages, emails and photographs laid bare in open court, and her private exchanges with friends being paraded to shame her, annihilating her privacy at the altar of the liberty of the accused. This case highlights the characteristic dignitary harm of our time, the aggregation of a person’s digital life, stripped of context, to rebuild the victim as someone unworthy of belief. Data-protection theory has long dealt with this mechanism of innocuous fragments: a photograph, a flirtatious message, a location ping, being assembled into a damning portrait. The Puttaswamy judgment [Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India, (2017) 10 SCC 1], though uncited, yet all three of its registers are protected and applied here: bodily privacy, autonomy over one’s body, engaged by consent; decisional privacy, autonomy over intimate choices, which the cross-examination sought to punish; and informational privacy, control over one’s own data.

The “ideal victim” principle applied by the trial court is a privacy failure as it demands that a survivor’s private life, how she socialises, whether she drinks, whom she loves, and how she grieves, each aspect should conform to a public template before she is believed. Unbelievable! Decisional privacy and the perfect-victim myth are the same problem in two languages, and the High Court was right to refuse both. The accused is entitled to a fair trial, and that includes testing the complainant’s credibility, but the rape shield bars only one thing, cross-examination aimed at the character and sexual history of the victim, while leaving the facts of the incident wide open. Exposing a complainant’s private life does not merely wound the woman in the witness box; it warns every woman who might come after her: the process is the punishment. Beware! Relief has arrived, but only in appeal, and this is subject to an appeal to the Supreme Court. An honest man should never be convicted, but nor should the victim be put on trial. By treating the trial court’s tolerance of character cross-examination as perversity, not indelicacy, the High Court has transformed the constitutional right to privacy into an operative guardrail, balancing a fair trial under Article 21 against privacy, also under Article 21.

About the author: Varun Pathak is a Partner at Shardul Amarchand Mangaldas & Co.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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