File photo of former Tehelka editor-in-chief Tarun Tejpal | Twitter @ANI
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The Goa court that acquitted Tarun Tejpal, former editor-in-chief of  Tehelka magazine, once again displayed the innately patriarchal nature of the law in India.

In its quest for an “ideal” sexual assault victim, the court acquitted Tejpal. The case was filed in 2013 by a journalist at Tehelka, who was sexually abused twice in Goa during an event organised by Tejpal. After the event, Tejpal sent two emails to her expressing his regret. Despite the clear evidence, Tejpal was acquitted on 21 May 2021. Why?

As usual, the court did not think that the woman’s testimony cannot be relied upon. In the light of this incident, it is imperative to think about the fundamental questions pertaining to the justice system.

I have three broad takeaways from the Tejpal rape case verdict.

The first one is that the justice system in India is but a reinforcer of the patriarchal system. Rather than redressing the harm done to the woman emanating from a patriarchal act, the court chose to doubt her “chastity” in the verdict.

It is not very tricky to understand that the justice system in India is made with patriarchal brick walls if we look at the rulings. In the recent past, the Madhya Pradesh High Court asked a man accused of sexual assault to get a rakhi tied by the complainant to get bail.

While the Supreme Court decried these “masculine” societal values that are reflected in the Madhya Pradesh HC directions, the SC was also responsible for giving out judgments that reinforce the patriarchal norms. The ex-CJI himself asked the man accused of raping a minor to marry her.

My second takeaway is that it becomes almost always impossible to locate who the “real” perpetrator of the crime is. When there is an obvious power imbalance between the accused and the “victim”, the judgment seems to favour the rich and the entitled in terms of class, gender and caste.

Most of the past judgments and experiences of people reflect this fact. Research by Thomas Blom Hansen suggests that when there is a theft in a Hindu house in Maharashtra, the police immediately go to a Muslim gali, grabs a boy and detains him. This will be followed by illegal violence and making the boy confess something he had not done.

Elsewhere in India, adivasis are the target and somewhere else, it is the Dalits. Balagopal, a human rights scholar, writes that the judiciary has great contempt for the thieves than the accused of any other crime. Why would a theft happen? Because we are living in an unequal society. We don’t have to get started on transgenders who are indiscriminately arrested because of their gender. If this is the case, the actual “criminal” is roaming among us while hundreds of innocent people are forced to sacrifice their precious time.

Concept of justice in India

My third takeaway is a question. Why do we still rely on retributive mechanisms of justice that do not seem to address the question of “justice”? The verdicts only tell us that a court case is a game where one wins and the other loses. And this game does not give a level playing field to both sides. It is an openly unfair one. The conception of crime without a conception of power is meaningless. Enough evidence shows that “criminal justice mechanisms” seem to favour the powerful side. Let me rephrase my question, what is the object of a justice system? What is the merit of this system that gives an impression to the “law-breaker” that the court is here not to deliver justice but to reinforce the prejudice that we all collectively hold so dear?

Rather than engaging in this rollercoaster ride about who wins the judgment or who will not, can we seriously engage in understanding what ‘justice’ is? The laws of the land and their enforcement reflect the biases towards the entitled. Can the forces of liberation from across caste, gender, and class lines seriously take a moment to assess India’s colonial penal punishment system? Can we already start discussing the ways of reorganising the society on really democratic lines?

The penalty seems to not be a solution in India these days, primarily because the foundations of the justice system in India are based on a bundle of prejudices. It is time we start seriously thinking about getting rid of colonial punishments and reinventing transformative penal practices. There is space for reconciliation.

It is high time we engage in a dialogue with the “criminal” rather than engaging in a crusade to get them punished by the very same patriarchal, casteist, classist and colonial judicial mechanisms. Our struggle for equality should be against all institutions that perpetuate inequality.

Bhagyanagar Vipanchika Sahasri is a student of Jawaharlal Nehru University, Delhi

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