How the Mahmood Farooqui acquittal jeopardises whatever progress was made post Nirbhaya

The Delhi High Court’s move to dilute the definition of consent while acquitting filmmaker Mahmood Farooqui of rape charges is not just legally untenable but adversely impacts anti-rape laws, say legal experts.

Giving the benefit of doubt to the Peepli Live’s co-director, Justice Ashutosh Kumar of the Delhi HC set aside trial court conviction which had awarded him seven years imprisonment for raping a US research scholar.

The court observed that there were doubts as to the occurrence of the sexual assault and went on to qualify consent

“It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same,” the court said, while setting aside the conviction.

The court observed that the “consent does not merely mean hesitation or reluctance or a “no‟ to any sexual advances, but has to be an affirmative one in "clear terms”.

“In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no.

On its reasons for Farooqui may not have understood the consent to be out of fear, the court said: “There is no communication regarding this fear in the mind of the prosecutrix to the appellant. The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act. The appellant had no opportunity to know that there was an element of fear in the mind of the prosecutrix forcing her to go along."

“At what point of time, during the act, did she not give the consent for the same, thus, remains unknown and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner."

Stand of legal experts

While holding the verdict to be “legally untenable”, legal experts said the court’s bid to qualify consent was a big setback to the anti-rape laws.

“The verdict is not just legally untenable but tends to set a dangerous precedent by trying to qualify consent and giving it a restricted connotation. A no means a no so why this need to qualify it? This verdict is big slap to anti-rape laws and the Justice Verma Committee recommendations,” said Prof Jhuma Sen of the Centre for Human Rights Studies, Jindal Global Law School.

“The legal system has been always been found wanting when dealing with cases of sexual assault. And whatever little progress was made post Nirbhaya case, this verdict tends to jeopardise that,” she said.

Cementing stereotypes

It’s not just the Delhi High Court. Earlier this month, a bench of Punjab and Haryana High Court, while granting bail to three rape accused, indulged in shaming the “promiscuous" victim.

The bench of Justices Mahesh Grover and Raj Shekhar Attri while granting bail observed “the testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters…”

Pointing to the two verdicts, Sen said the judicial system instead of addressing was actually cementing stereotypes and misogyny.

“The societal understanding of consent in case of woman is “Bollywoodish” where a no is taken as yes. These verdicts further cements such stereotypes and misogyny,” Sen added.

An erroneous verdict

Supreme Court advocate Karuna Nundy pointed to the contradictory aspects of the Farooqui verdict while questioning its legality.

“On one hand it says prosecutrix was a sterling witness and her evidence was corroborated in material particulars. But then it goes on to doubt whether the incident actually happened or not.

“The court said if a woman is intellectually proficient, then there is greater responsibility on her to say “no” forcefully as opposed to just a “no” - regardless of whether she is scared. It's not clear as to the level of force required either (in saying no),” she said.

Contrary to the court’s assertions of the “no” required to be “emphatic”, Nundy contended that in cases of prior sexual intimacy, a no should be taken far more seriously.

“If there is prior consensual kissing and if someone is subsequently saying no, shouldn’t that (no) be taken more seriously rather than less,” she said contending that “legal rigour” is very important in deciding such cases.

Senior advocate Rebecca John said HC verdict is erroneous.

“The interpretation of consent is not legally tenable and is contradictory to the statutory definition of consent. Besides the verdict being erroneous, it enforces the stereotypes women have been fighting against,” she said.