Let me start with a candid confession: I decided to write on this after reading the enlightening editorial written by none other than Indira Jaising who is not just a senior and one of the most eminent Supreme Court lawyer but also a former Additional Solicitor General. Most importantly, her greatness can be gauged from this that she voluntarily gave up her senior counsel gown. She tweeted “On independence day, I am starting a ‘Gown wapasi’ movement wef August 16th will shed my senior counsel gown as a symbol of discrimination”. In a forward tweet, she also wrote “Why do we need two classes of lawyers with different uniform?” She had said “Seniors get a more patient hearing too from the judges and this was wrong..a separate gown for seniors also marks discrimination.” How many senior lawyers in last 70 years have shown such magnanimity? I salute her from the bottom of my heart for this simplicity and down-to-earth approach inspite of all her abundant talent, experience of many decades and unquestionable status! No doubt, she has etched her name permanently in golden letters in the annals of history of Supreme Court and her selfless contribution can never be ignored even by her worst critics!
Anyway, coming back to the real subject, the recent judgment of the Delhi High Court in the case of Mahmood Farooqui v State (Govt of NCT of Delhi) (Criminal Appeal No: 944/2016) has generated a huge furore and many eminent lawyers like Indira Jaising have termed it as disastrous for women. Indira Jaising in her extremely enlightening editorial titled “The Farooqui acquittal is disastrous for women” published in ‘Hindustan Times’ newspaper dated September 30, 2017 elegantly brings out that, “In acquitting Mahmood Farooqui, Justice Ashutosh Kumar has rewritten the definition of rape and introduced a defence of a mistake made in good faith about the absence of consent by a woman. This on the pretext that they were persons of “letters” and known to each other, hence a “feeble” no was not good enough. This assumes that the accused admits to having s*x but claims that he understood her “no” to mean “yes”. The accused made no such claim but said that there was no opportunity to have s*x for want of time. This made it necessary for the judge to disguise the defence as being one of the benefit of the doubt. The outcome is a judgment which gives every man a defence to say he understood the no to mean yes, with devastating consequences for all women. It will no longer be sufficient to prove that she did not consent, she will also have to prove that the man was in his senses, knew what he was doing, and was not confused for any reason whatsoever (in this case by being bipolar). Apart from the above sleight of hand on converting a defence into a question of burden of proof being on the prosecutrix, the judgment is replete with active ignorance of law. This is also of a piece with the judge looking for active resistance by a woman perhaps with the necessary injury on display in court, in express violation of the 2013 amendments which say that absence of injury cannot lead to the conclusion that there was no resistance. Also forgotten is the fact that the law has been amended to ignore the past s*xual history of a woman in reaching a conclusion on the question whether rape took place on this specific occasion. There is a bias against women of “letters”, who interact with men on equal terms, love men who are not necessarily their husbands, may have consensual s*x on occasion but not on demand without consent.”
Let us now discuss some facts of the case and the judgment delivered. The Delhi High Court recently acquitted Peepli Live co-director Mahmood Farooqui of raping a US citizen, setting aside a lower court verdict sentencing him to seven years in jail. The court, in its judgment, said there were doubts whether such an incident took place in the manner alleged by the woman concerned. It added “And even if it did occur, (there is lack of clarity on) whether it was without the consent/will of the prosecutrix.”
Going further, Justice Ashutosh Kumar said the appellant “had no idea that the prosecutrix was unwilling, and there are instances when a feeble ‘no’ on the part of a woman may mean ‘yes’ during the course of a s*xual act”. He also noted that, “In cases where the parties are known to each other, it could be really difficult to decipher whether a feeble ‘no’ with little or no resistance amounts to denial of consent”. Speaking for myself, I very strongly believe that a woman’s feeble ‘no’ with even no resistance amounts certainly to denial of consent and there can be no compromise on this. Even a husband has no right to have s*x with his wife against her consent.
Let me now jog my readers memory a little back in this case. The Delhi Police had lodged an FIR against Farooqui on June 19, 2015, after an American citizen of Indian origin accused him of rape. The charge sheet stated that Farooqui had raped the complainant who was a research scholar from Columbia University at his Sukhdev Vihar residence in South Delhi on March 28, 2015.
Be it noted, the trial began on September 9, 2015, and the woman appeared in a Sessions Court on September 14 to record her statement. The Court held Farooqui guilty of rape on July 30, 2016 and awarded him seven years in jail with a fine of Rs 50,000. The co-director immediately challenged the verdict in the Delhi High Court.
As it turned out, the Delhi High Court cited the theory of s*xual consent among its reasons for acquitting Farooqui. “Sexual consent would be the key factor in defining s*xual assault,” the Court recorded. It further noted that, “There is a recent trend of suggesting various modes of s*xual consent. The traditional and most-accepted model would be the ‘affirmative model’, meaning that ‘yes’ is ‘yes’ and ‘no’ is ‘no’. However, there would be some difficulty in the universal acceptance of the aforesaid model of consent.”
Further elaborating on the subject, the Delhi High Court said that the traditional theory can be safely applied in cases where both the parties involved are strangers. It added that, “However the same wouldn’t be the situation when the parties are known to each other, are intellectually/academically proficient, and if there has been physical contact in the past. In such cases, it can be difficult to decipher whether little or no resistance and a feeble ‘no’ actually amount to denial of consent”.
Truth be told, the Delhi High Court also refused to buy the woman’s argument that she had given in to Farooqui’s s*xual advances under fear. The Court said that, “There was no communication regarding this fear in the mind of the prosecutrix to the appellant. The prosecutrix made a mental move of feigning orgasm, so as to end the ordeal. However, the appellant was made to believe – although wrongly and mistakenly – that the prosecutrix had participated in the act. The appellant had no opportunity to know that there was an element of fear that forced her to go along.”
What this judgment ignores is the definition of consent as defined under Section 90 of the Indian Penal Code. Let us discuss only the relevant part. It states that, “A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.”
It is also noteworthy that Section 114A of the Indian Evidence Act also leaves no room of doubt that there is a presumption in cases of s*xual offences that the victim did not consent. Regrettably, we find that the Delhi High Court has ignored this. It has instead itself piloted an “affirmative model” of consent by which even a “no” may be interpreted to mean a “yes”. This is what many legal luminaries strongly object to and they have a valid point in doing so!
It is most tempting to ask here: Is it fair that a woman is expected to very firmly and loudly convey her resistance to any s*xual advances who knows that the man is physically strong and can injure her if she refuses him? I don’t think so. There are many woman who speak very politely and never shout so does that mean their no carries no meaning? Certainly not!
It must be added here most forcefully: They (women) have every right to say ‘no’ to any men whenever they want to say so and s*x can never be done without her full and final consent. ‘No’ always must be presumed to mean ‘no’ even if she says feebly or politely. Under no circumstances can a ‘no’ of women be taken to be interpreted as ‘yes’. At least I feel so. I can’t say about others.
Before winding up, let me again quote Indira Jaising who brilliantly concluded by saying that, “While the Mathura case represented a black day for adivasi women, this one represents a black day for the woman of “letters”. It seems we are in a no win situation. We cannot expect equality and expect that we will not be raped. The sooner the Supreme Court overturns this judgment, the better it will be for the women of this country.” There can be no denying it.
It needs no rocket scientist to conclude that what Jaising has said cannot be dismissed lightly! She has a valid point in explicitly saying so. All Judges in future must also always bear this before they go on to deliver judgments in such cases.
If they fail to do so, little wonder then that it will not stand up to legal scrutiny. It will certainly get explicitly overruled by the Supreme Court because under the fundamental principle of jurisprudence as also under our criminal justice system and laws as amended after the Nirbhaya gang rape case in December 2012, our law always presume ‘no’ when a women says ‘no’ and under no circumstances can a ‘no’ even if it is very feeble be tweaked to mean ‘yes’!
