The Bombay high court’s reversal of Tarun Tejpal’s acquittal says that a survivor’s sexual history, personality and conformity to an imagined model of victimhood cannot substitute for evidence about consent and culpability.Five years ago, after a Goa trial court acquitted Tarun Tejpal of rape, I argued that its judgment had effectively turned the victim into the accused.The trial court had subjected the complainant’s conduct, relationships, recollections and reactions to remarkable scrutiny. Her past sexual history repeatedly entered the judgment. Relatively minor differences in recollection became material contradictions. The testimony of a defence witness about her private life was used against her. Her failure to resist, remember or behave in ways considered appropriate for a rape victim diminished her credibility. On August 6, the Goa bench of the Bombay high court came strikingly close to describing the same inversion.In its 81-page judgment, the division bench of Justices Neela Gokhale and Amit S. Jamsandekar said a review of the survivor’s cross-examination showed that the defence repeatedly focused on her personally, “as if she were on trial rather than the Respondent”. The court noted that her private relationships, social-media activity and responses to trauma had been extensively examined. Nearly half of her approximately 1,000-page cross-examination, it said, involved repetitive questioning about details of the alleged assault.The high court set aside the May 21, 2021 acquittal and convicted Tejpal of rape and other offences under the Indian Penal Code. But the larger importance of the judgment lies beyond the change from acquittal to conviction.It concerns the rules by which rape is tried.The difficulty of reversing an acquittalAny defence of the high court judgment must begin with what makes it legally difficult.Tejpal had been acquitted after a full trial. An appellate court does not approach such an acquittal as though it were deciding guilt for the first time.The Supreme Court’s well-established principles governing appeals against acquittal give an acquitted accused a reinforced, or “double”, presumption of innocence. An appellate court can reappreciate the evidence, but if two reasonable conclusions are possible, the acquittal ordinarily remains undisturbed.Bombay high court bench in Goa. Photo: Facebook.The high court expressly accepted this limitation. It relied on the principles in Chandrappa v State of Karnataka,(2007) as subsequently restated in Rajesh Prasad v State of Bihar (2022). Interference, it noted, is warranted where an acquittal suffers from patent perversity, ignores or misreads material evidence, or where the trial court’s conclusion cannot qualify as a reasonably possible view.That is important because the high court does not purport merely to prefer one interpretation of disputed evidence over another.It identifies defects in the process by which reasonable doubt itself was generated.The trial court, according to the appellate judgment, relied on irrelevant or inadmissible material, magnified minor discrepancies, misread CCTV evidence, wrongly discounted contemporaneous communications, attached significance to the absence of injuries and particular forms of resistance, drew adverse conclusions from the survivor obtaining legal advice, and allowed her sexual history to influence its assessment of credibility.The high court ultimately held that the appreciation of evidence was “not only unreasonable but perverse”, and that the trial court’s conclusion was not a possible view of the evidence.Whether the Supreme Court, if Tejpal challenges the conviction as he has indicated he will, agrees that this demanding threshold was crossed will be the central appellate question.But another part of the judgment raises an issue that should survive regardless of what happens in the next appeal: what additional burdens may a court legitimately impose on a woman before believing that she did not consent?No obligation to perform victimhoodThe trial court appears to have expected a recognisable pattern after sexual assault: physical resistance during the act, visible distress afterwards, withdrawal from ordinary activity and behaviour demonstrably consistent with trauma.The high court rejects that template as the “perfect victim” construct.It notes that the survivor remained at the THiNK festival, continued performing her professional duties, may have danced and had a glass of wine. Photographs showing her smiling were also invoked against her.But, as the high court points out, trauma has no mandatory outward form. Credibility cannot depend on whether a survivor fits a predetermined cultural mould.Also read: Day After Minor Accused of Using Expletives Against Modi Disclosed Receiving Rape Threats, No Police ProbeThis principle was already embedded in Supreme Court jurisprudence. In Aparna Bhat v State of Madhya Pradesh, (2021) delivered two months before Tejpal’s acquittal, the Supreme Court expressly warned courts against stereotypes that classify women according to sexual history or expected behaviour.The high court’s contribution in Tejpal’s case is to apply that principle to the actual mechanics of evaluating evidence.Why did she not lower her chin when Tejpal allegedly attempted to kiss her? Why did she not scratch him? Why did she not react in a particular way when pushed against a wall? Why did she remain at the festival?The trial court regarded such questions as relevant to credibility. The high court saw them as manifestations of an imagined victim.That distinction is crucial. The law may legitimately ask whether testimony is internally consistent and supported by the surrounding evidence. It cannot quietly devise a behavioural examination that a survivor must pass.When sexual history returns through the back doorThe high court’s criticism is even sharper over the use of the survivor’s sexual history.The Criminal Law (Amendment) Act, 2013, which was already in force when the alleged offences occurred, consciously restricted this form of inquiry in Section 25 which inserted Section 53A in the Indian Evidence Act. Section 53A of the Indian Evidence Act made evidence of a survivor’s character or previous sexual experience irrelevant when consent was in issue in specified sexual offences. The proviso to Section 146 similarly barred questioning about previous sexual experience for proving consent or its quality. Yet during the trial, the survivor was extensively questioned about her past relationships, sexual history and personal WhatsApp messages. Her husband was separately questioned about relationships she had before their marriage and shown private, intimate messages exchanged between the couple before they married. The high court held that such questioning crossed the limits imposed by law and subjected the survivor to an invasive and humiliating inquiry into matters irrelevant to consent. Prohibited material concerning her sexual history was ultimately used to censure her character and discredit her evidence during the trial, it added. This is precisely where a statutory safeguard can become meaningless in practice.A court may say previous sexual experience is not being considered to establish consent. But if intimate material is introduced to show that the complainant lied about some aspect of her private life, and that supposed lie is then used to declare her an unreliable witness generally, sexual history has simply returned through another evidentiary door.That was one of the central concerns in my 2021 analysis of the acquittal. The trial court had relied substantially on defence witness Nikhil Agarwal’s account, including material concerning the complainant’s relationship with him, while simultaneously insisting that it was not using that evidence to judge her character.The high court has now independently identified the larger problem.Pratiksha Baxi’s contemporaneous critique in The Wire located it within a much older pattern. Her scholarly work, Public Secrets of Law: Rape Trials in India, showed how rape adjudication can turn the complainant’s body, relationships and sexuality into sites for judging her credibility.The statutory reform sought to close precisely that route.A right to seek legal adviceThe high court also disagrees with the trial court over the survivor’s consultations with lawyers and an NGO.The trial court viewed such consultations as potentially relevant to whether her version had been “doctored”. The high court calls that inference flawed.The context matters.Tejpal was her employer and mentor, her father’s friend and the father of her close friend. The high court records that he occupied a position of dominance, control, trust and authority over her. It also notes her evidence that she feared the professional consequences of proceeding against someone with considerably greater power and influence.Seeking advice before confronting such a person is hardly aberrant behaviour.Indeed, one of the underlying concerns of the Justice J.S. Verma Committee’s report was that survivors require institutional and legal support when navigating the criminal justice process.A system cannot demand that a complainant make legally consequential decisions and then treat her attempt to obtain professional advice as evidence that her account may have been manufactured.Power inside the liftThe workplace relationship is equally significant.Tejpal was not simply another attendee at a festival. He was the editor-in-chief and owner of Tehelka. The survivor worked for the organisation and was subordinate to him.This did not prove rape. But it was legally relevant to the aggravated offences under Sections 376(2)(f) and 376(2)(k), which concerned a person occupying a position of trust, authority, control or dominance.The high court found that Tejpal occupied precisely such a position. It also records testimony about the survivor’s fear that a complaint could destroy her job and career.Consent is an individual decision, but the circumstances in which it is given or refused cannot be separated artificially from relationships of power.What the apology emails provedThe high court also sharply disagrees with the trial court’s treatment of Tejpal’s apology emails.After the survivor complained to Tehelka on November 18, 2013, Tejpal sent two emails the following day. In one, he apologised for attempting a sexual liaison on two occasions despite her “clear reluctance”. In another, he acknowledged an “encounter”, said he had read her feelings wrongly and referred to doing something “furtive” with his daughter’s friend.Precision is important here.An acknowledgement of a sexual encounter need not automatically amount to a confession to rape. Bhabna Das made that distinction in her 2021 examination of the apology emails. Her point was that even if the emails stopped short of an unequivocal confession, they remained relevant admissions and were difficult to reconcile with the defence portrayal of the events as merely drunken banter. The high court goes further. It finds that the trial court wrongly disregarded the emails and accepted, without adequate material, the contention that they had been written under pressure.This part of the judgment is likely to attract close scrutiny in an appeal. But the broader evidentiary point remains: the emails had to be evaluated for what they actually acknowledged, rather than dismissed because they did not contain a textbook confession.Survivor-sensitive justice does not dilute reasonable doubtThere is an important danger in arguments about gender stereotyping in rape trials.A survivor-sensitive approach cannot mean that the prosecution’s burden is reduced, that inconsistencies cease to matter or that a complainant must automatically be believed. Tejpal retains the protections of criminal law, including the requirement that guilt be established beyond reasonable doubt.The high court itself recognised the additional protection created by his earlier acquittal.The better principle emerging from its judgment is therefore narrower, but more important: reasonable doubt must itself be reasonably produced.Doubt arising from conflicting forensic evidence, a material contradiction, an investigative failure that seriously damages the prosecution case, or a credible alternative account is one thing.Doubt created because a woman smiled, remained at work, failed to scratch her attacker, could not remember whether she moved a particular limb five years earlier, consulted a lawyer or had previous sexual relationships is something altogether different.Gender stereotypes do not become reasonable doubt merely because they acquire the vocabulary of judicial reasoning.A survivor does not have a right to automatic belief. She has a right to have her evidence tested according to legally relevant standards, without an additional credibility tax imposed by notions of chastity, passivity or prescribed trauma.That may be the enduring significance of the high court judgment.A conviction cannot undo the trialThere is finally a troubling asymmetry in this case.The alleged assaults occurred in November 2013. The high court judgment has come nearly 13 years later. In between were an investigation, an extraordinarily long trial, an acquittal, public controversy and an appeal.The high court records that the survivor was compelled to resign and suffered profound embarrassment during the trial. It was particularly critical of the trial court’s failure to control questioning that became humiliating rather than relevant to testing the survivor’s evidence. That distinction takes the judgment beyond Tejpal.Justice in a sexual-offence case is not exhausted by the final verdict. It also lies in the process by which that verdict is reached. A later conviction cannot restore privacy already invaded or erase questions which the law should never have permitted to become tests of credibility.The Supreme Court may yet decide whether the Bombay high court was justified in crossing the exceptionally high threshold required to reverse Tejpal’s acquittal.But the principle underlying another part of the judgment should require no further appeal.Five years ago, the striking feature of the acquittal was that the woman alleging rape appeared, page after page, to be defending her sexuality, her memory, her relationships and her behaviour.The Bombay high court has put the legal inquiry back where it belongs: on the evidence concerning the acts of the accused and the question of consent.A woman who enters a courtroom alleging sexual assault does not thereby place the rest of her sexual life, her personality or her dignity in evidence.V. Venkatesan is a veteran legal journalist.