Need to Revisit Anti-Male Bias in Indian Law: A Critical Analysis in the Wake of the Tarun Tejpal Judgment

1) Introduction: In August 2026, the Bombay High Court at Goa reversed the 2021 acquittal of former Tehelka editor Tarun Tejpal and convicted him in the 2013 case involving a junior colleague. The Court subsequently sentenced him to ten years’ rigorous imprisonment. Tejpal has challenged the conviction before the Supreme Court, while the State of Goa has separately sought enhancement of sentence. The litigation is therefore not yet finally concluded.

The case raises difficult questions about the manner in which courts should evaluate allegations of sexual offences. How far can an appellate court go in reversing an acquittal? What should happen when potentially objective electronic evidence is unavailable? How should courts distinguish impermissible stereotypes about the behaviour of a victim from legitimately relevant post-occurrence conduct? And, perhaps most importantly, how should statutory presumptions regarding consent operate without weakening the fundamental requirement that the prosecution prove the offence beyond reasonable doubt?

These questions deserve discussion without reducing the debate either to unquestioning acceptance of every allegation or to suspicion of every complainant.

The objective of criminal justice must remain twofold: genuine victims must receive justice, and an accused must receive a fair trial. Neither objective requires sacrificing the other.

2) From Acquittal to Conviction

The Trial Court acquitted Tejpal in May 2021. The State of Goa appealed.

On 6 August 2026, a Division Bench of the Bombay High Court comprising Justice Dr Neela Gokhale and Justice Amit S. Jamsandekar reversed that acquittal and convicted him. The High Court considered the Trial Court's approach to several aspects of the evidence legally untenable and rejected, in particular, reasoning based upon expectations about how a victim of sexual assault ought to behave.

That immediately brings into play an important principle of criminal appellate jurisprudence: the double presumption of innocence following an acquittal.

In Chandrappa v. State of Karnataka, the Supreme Court held that although an appellate court possesses full power to review and reappreciate the evidence in an appeal against acquittal, an accused who has already been acquitted enjoys a reinforced presumption of innocence. If two reasonable conclusions are possible on the evidence, the appellate court should ordinarily not disturb the acquittal.

Similarly, Ghurey Lal v. State of Uttar Pradesh emphasised that an acquittal strengthens the presumption of innocence and that due weight must be given to the Trial Court's assessment. Therefore, the legal question in the Tejpal appeal was never merely:

Whose version does the appellate court prefer?

The deeper question was:

Was the Trial Court's view so legally or factually unsustainable that appellate interference with the acquittal was justified?

That distinction is central to understanding the controversy surrounding the judgment.

3) The 129-Second Question

One of the most discussed pieces of objective evidence in the case concerns the CCTV chronology.

The prosecution charge-sheet recorded that Tejpal and the complainant entered the lift at the ground floor and emerged on the second floor approximately 129 seconds later—2 minutes and 9 seconds.

It would be legally unsafe to say that an allegation is false merely because the recorded interval was 129 seconds. Human conduct cannot always be tested with mathematical precision, nor can the seriousness of an allegation be determined simply by a stopwatch.

But the duration remains evidentially relevant.

Once a prosecution presents a specific chronology involving movement through a building, the court may legitimately ask:

• How was the lift moving during those 129 seconds?

• Did it stop at intermediate floors?

• What was the sequence indicated by the available CCTV cameras?

• Was the prosecution's account mechanically consistent with the available objective evidence?

• Was there potentially relevant footage from other floors?

• If such footage existed but was unavailable, why was it unavailable?

These are not questions about the complainant's character.

They are questions about objective corroborative evidence.

That distinction matters.

4) Missing CCTV: Neither Prosecution Evidence nor Defence Evidence

Electronic evidence occupies a unique place in modern criminal trials.

A CCTV camera has no emotional allegiance to either side. It does not favour the complainant and it does not favour the accused. It records whatever takes place within its field of view.

Consequently, where CCTV footage capable of objectively testing an important portion of a prosecution or defence narrative existed or ought reasonably to have existed, its preservation assumes considerable significance.

The Tejpal litigation included controversy over footage relating to different floors and over the defence version concerning movement through the hotel.

The correct legal approach should not be:

“Missing CCTV proves the defence.”

Nor should it be:

“Missing CCTV is irrelevant because the complainant has testified.”

The appropriate inquiry is more restrained:

Could the missing electronic evidence reasonably have assisted the court in testing either version, and if so, what consequence should follow from its absence?

As criminal investigations become increasingly dependent upon CCTV, mobile devices, location records and digital communications, investigating agencies should be expected to preserve potentially relevant objective evidence at the earliest possible opportunity.

Missing CCTV Footage also raises questions about the integrity of available electronic evidence. The question of integrity is also important since the High Court has not discussed important question relating to Chain of Custody.

5) Alibi or a Challenge to the Prosecution Chronology?

Another important conceptual issue concerns the distinction between an alibi and a challenge to the prosecution's own version of events.

A traditional plea of alibi ordinarily means:

The accused says that he could not have committed the offence because he was somewhere else at the relevant time.

Such a plea involves a fact particularly asserted by the defence.

But suppose the accused does not dispute being present at the premises or even being with the complainant. Instead, he says that the prosecution's description of how the events unfolded during a particular interval is inconsistent with the surrounding evidence.

That is not necessarily the same thing as saying:

“I was somewhere else.”

Why does this distinction matter?

Because the burden of proof changes depending upon what precisely is being asserted.

If the accused sets up a positive plea of alibi, he may bear the evidential burden relating to that plea.

But if the defence merely points to defects or inconsistencies in the prosecution's chronology, the fundamental burden remains upon the prosecution to establish its case beyond reasonable doubt.

Criminal courts must therefore identify carefully whether they are dealing with:

a positive defence which requires proof, or a challenge to whether the prosecution has discharged its original burden.

Those are conceptually different questions.

 6) The “Perfect Victim” Fallacy

One aspect of the Bombay High Court judgment deserves strong support.

The Court rejected the assumption that a genuine victim of sexual assault must behave according to a predetermined behavioural template.

The High Court criticised reasoning that expected the complainant to display continuous distress, passivity or a stereotyped response following the alleged incident. It emphasised that there is no legally valid concept of a “perfect victim.”

That principle is important.

A court cannot legitimately reason:

• She did not immediately cry, therefore the allegation must be false.

• She continued working, therefore nothing happened.

• She communicated normally with others, therefore the allegation must be fabricated.

• She had previous relationships, therefore her testimony deserves less weight.

Such reasoning replaces evidence with stereotypes.

A person's previous sexual history or perceived morality does not determine whether consent existed in the transaction under adjudication.

But recognising this principle does not require courts to declare every form of post-occurrence conduct legally irrelevant.

That distinction is equally important.

7) Post-Occurrence Conduct: Character Evidence or Relevant Evidence?

Under the former Indian Evidence Act, Section 8 made certain previous or subsequent conduct relevant. The corresponding provision is now Section 6 of the Bharatiya Sakshya Adhiniyam, 2023, dealing with motive, preparation and previous or subsequent conduct.

This does not mean that every WhatsApp message, photograph or social interaction following an alleged offence becomes admissible.

Nor does it permit a court to put the complainant's morality on trial.

The proper question should be whether particular conduct has a genuine connection with a fact in issue or with an explanation advanced during the proceedings.

That distinction becomes especially important where the prosecution seeks to explain delayed reporting on the basis of particular circumstances such as fear, trauma, hesitation or social pressure.

The inquiry should never become:

“Did she behave like an ideal victim?”

A more legitimate evidentiary question may be:

“Does the contemporaneous evidence materially support or contradict the particular explanation being offered for the delay?”

That inquiry focuses upon evidence rather than morality.

8) The “Woof, Wag and Wiggle” WhatsApp Messages

The Tejpal case itself illustrates the difficulty.

The defence relied upon contemporaneous communications involving a WhatsApp group called “Woof, Wag and Wiggle” and other private messages exchanged by the complainant. The Bombay High Court considered the defence reliance upon such material and held that portions had been taken out of context in an attempt to attack the complainant's character. The Court considered the conversations in context and rejected the contention that they demonstrated a pre-planned intention to falsely implicate Tejpal.

That conclusion provides an important lesson.

Private conversations containing sexual humour or informal language cannot themselves establish that a subsequent allegation is false.

But there is an equally important evidentiary principle:

Character and conduct are not always the same thing.

Evidence should not be admitted merely to suggest that a complainant is sexually liberal, unconventional or of supposedly “bad character.”

But where a particular contemporaneous communication has a direct bearing upon a fact in issue, a defence explanation, the timing of disclosure, motive, or another legally relevant matter, its admissibility and weight must be determined on ordinary evidentiary principles.

The answer should therefore not be blanket exclusion or blanket admission.

It should be relevance, context and probative value.

9) Delay in Reporting: Neither Automatically Fatal nor Automatically Irrelevant

Indian courts have long recognised why delayed reporting of sexual offences requires sensitive treatment.

Victims may hesitate because of fear, social pressure, family circumstances, trauma, uncertainty, professional consequences or numerous other reasons.

Therefore, delay by itself cannot justify rejection of a rape allegation.

But an equally absolute rule in the opposite direction would also be problematic.

Delay can have important forensic consequences.

As time passes, CCTV may be overwritten; electronic records may disappear; physical or medical evidence may become unavailable;witnesses' memories may weaken; location information may become harder to retrieve.

A better judicial approach would therefore require courts to ask two distinct questions:

1. Why did the delay occur?

The explanation must be assessed in the circumstances of the individual case rather than through stereotypes.

2. What evidentiary consequences resulted from the delay?

Did it cause the loss of evidence which could otherwise have objectively tested either version?

This approach preserves sensitivity toward genuine victims without pretending that delay can never affect the reliability of a criminal investigation.

10) The 2013 Expansion of the Definition of Rape

India fundamentally expanded the legal definition of rape following the Criminal Law (Amendment) Act, 2013.

The contemporary definition under Section 63 of the Bharatiya Nyaya Sanhita, 2023 covers several forms of non-consensual penetrative sexual conduct rather than restricting the offence to the historically narrower conception of rape. There are compelling reasons for ensuring that serious non-consensual sexual acts attract serious punishment.

Nevertheless, the expansion raises a legitimate question of criminal-law classification:

Must every form of prohibited penetrative conduct necessarily carry precisely the same legal label?

Different jurisdictions have answered that question differently.

That is a matter Parliament can legitimately debate without suggesting that any non-consensual sexual offence should be trivialised.

The real policy question is one of classification, proportionality and precision, not whether victims deserve protection.

11) Sensitivity Cannot Replace Proof

Modern rape jurisprudence has correctly rejected several historically damaging assumptions.

Absence of physical resistance does not automatically imply consent.

Delay does not automatically imply fabrication.

A complainant need not behave according to a stereotyped conception of trauma.

Her prior relationships or sexual history do not deprive her of the right to refuse consent on another occasion.

But these reforms should not lead to a new evidentiary extreme.

Courts must carefully examine material contradictions, objective electronic evidence, unexplained missing evidence, contemporaneous communications where genuinely relevant, changes in versions, forensic consequences of delay, and the inherent consistency of the prosecution case.

Calling every difficult question “victim blaming” would weaken rather than strengthen criminal justice.

The answer to old stereotypes cannot be the abandonment of ordinary standards of proof.

12) Three Areas Where Reform Deserves Serious Debate

The Tejpal case provides a useful platform for considering at least three broader reforms.

1. A More Structured Approach to Delayed Reporting

Courts should avoid both extremes.

Delay should neither automatically destroy a prosecution nor automatically be declared irrelevant merely because the allegation concerns a sexual offence.

Every judgment should separately consider:

the explanation for delay, and the evidentiary prejudice, if any, caused by delay.

2. Better Preservation of Objective Evidence

CCTV recordings, access-control records, mobile data, location records and other electronic evidence should be preserved promptly whenever reasonably capable of testing a material allegation.

Where crucial objective evidence existed but was not preserved, courts should examine:

• who controlled it;

• when investigators became aware of it;

• whether preservation was reasonably possible;

• and how its absence affects the evidentiary picture.

Better investigation protects both complainants and accused persons.

3. Clear Separation Between Occurrence and Consent

Courts should articulate distinctly:

First: did the alleged sexual act occur?

Second: if it occurred, was there consent?

That separation becomes especially important whenever a statutory presumption regarding absence of consent is invoked. Section 114 A also needs to be revisited particularly in view of expanded difination of rape which makes medical corroboration very difficult.

13) False Implication: A Possibility, Not a Presumption

Any balanced discussion of rape law must acknowledge two realities simultaneously.

First, sexual violence is a serious crime and genuine victims have historically faced formidable barriers in reporting and proving such offences.

Second, false implication is a possibility recognised by the very structure of criminal trials; no category of criminal allegation can be treated as infallible merely because the alleged offence is serious.

Every allegation deserves investigation. Every complainant deserves dignity. Every accused deserves the presumption of innocence. And every conviction must rest upon proof satisfying the criminal standard.

Conclusion: Victim Justice and Fair Trial Are Not Opposites

The most important lesson from the Tarun Tejpal litigation should not be that Indian rape law is necessarily too harsh or too lenient.

It is that sexual-offence jurisprudence operates at the intersection of two fundamental obligations.

The first is the obligation to ensure that complainants are treated with dignity, their testimony is not rejected on archaic stereotypes, and genuine sexual violence is effectively prosecuted.

The second is the obligation to preserve the presumption of innocence, test evidence rigorously and ensure that no person is convicted merely because the allegation itself is grave.

These principles need not conflict.

Victim sensitivity and fair-trial rights can—and must—coexist.

Legal Note

This article is a critical analysis of legal and evidentiary issues arising from State of Goa v. Tarunjit Tejpal. The Bombay High Court's conviction is presently under challenge before the Supreme Court. Nothing in this article should be understood as making an independent factual finding regarding guilt or innocence.