Mahmood Farooqui acquitted in rape case: Has Delhi HC let down the idea of consent?
Mahmood Farooqui
In a judgment that's likely to weaken anti-rape laws and the idea of consent significantly unless overruled by the Supreme Court, the Delhi High Court has acquitted Mahmood Farooqui, the co-director of Aamir Khan-produced Peepli Live, of a rape charge he was convicted for by a lower court in 2016. Farooqui had appealed against the conviction that held him guilty of raping a US citizen - a Columbia University student.
However, the Delhi HC judgment has come in his favour, even as it dilutes the idea of consent significantly. The judgment is available in public domain, and sections from it are being tweeted out by legal journalists and experts, panning the verdict for its antiquated and downright anti-woman take on the idea of consent.
Farooqui, 44, made the political satire on farmers' suicide and the media circus around it that was much acclaimed critically, and catapulted him to national fame. However, the rape charge against him seemed to have underlined the sexism and sexual violence rampant among even the most educated and politically sensitive of India's cultural elite.
Key passages from the Delhi High Court judgment highlight the fact that the verdict might have greatly weakened anti-rape laws as well as the idea of consent, to the extent that it construes a "weak/feeble no" as a "yes", and pins the responsibility of communicating lack of consent on the victim, and not on mis/discerning it on the part of the abuser/rapist.
Delhi HC's views on "consent" in #MahmoodFarooqui rape case seem outrageous & judicially untenable. It defies all precedents & logic. pic.twitter.com/w9kqAgLCDk
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
Who argued and earned acquittal for #MahmoodFarooqui as Delhi HC tends to redefine concept of "consent"? ...Sr Adv Kapil Sibal
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
Senior advocate Kapil Sibal had appeared for Farooqui. It must be noted that Sibal has also represented the government in taking a stand against criminalising marital rape. The Delhi HC judgment says that in case of past sexual contact between the two parties, it's difficult to decipher a clear "no", as "no may not always be a no and yes may not mean yes". The HC said that women's "feeble no" may often mean "yes", thereby completely overlooking the woman's point of view in pronouncing the judgment.
Instances of woman behavior are not unknown that a feeble 'no'may mean a 'yes':Delhi HC while acquitting Peepli Live-fame #MahmoodFarooqui
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
Can't decipher a 'No' when parties know each other,are intellectually proficient&had physical contacts in past:Delhi HC in #MahmoodFarooqui
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
Chief reason why #MahmoodFarooqui was acquitted of rape:It may not necessarily always mean yes in case of yes or no in case of no, says HC.
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
In clearing #MahmoodFarooqui of rape,HC puts onus on victim:Consent can't behesitation/reluctance/No but has 2b affirmative in clear terms??
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
How DelHC acquitted #MahmoodFarooqui of rape:Not sure about consent..if no consent, Farooqui had bipolar disorder so he didn't understand.
— Utkarsh Anand (@utkarsh_aanand) September 25, 2017
Farooqui had earlier said that he and the victim had been in a "relationship" since January 2015, adding: "In a relationship when people are attracted to each other, things do happen. But it does not mean it's rape". He was sentenced to seven years in jail and Rs 50,000 fine in 2016 by a lower court in Delhi. Key passages highlight the absurdity and regressiveness of the judgment as far as women's rights and sexual equality are concerned, pinning the responsibility of communicating consent as well as its implications on the woman.
In certain situations difficult to decipher whether feeble no or little resistance is actually denial of consent, Delhi HC. #MahmoodFarooqui pic.twitter.com/Ug65iXJ6Kc
— Murali Krishnan (@legaljournalist) September 25, 2017
#MahmoodFarooqui : The traditional "yes” is “yes” and “no” is “no” model cannot have universal acceptance, Delhi High Court. @barandbench pic.twitter.com/fDzCJg7xVI
— Murali Krishnan (@legaljournalist) September 25, 2017
Adding that there's difference in the way men and women express sexual consent, and emphasising on non-verbal gestures, the court has given benefit of doubt to the entitled male aggressor, ignoring the victim and her sense of being violated. This is the classic "woman can't be trusted with her version" play on the idea of consent, thereby almost undoing the premise of equality and reciprocity in sexual relationships.
There could be myriad circumstances surrounding a consent, notnecessary that yes means yes and no means no, Delhi HC. @barandbench pic.twitter.com/g0kfYNhT4y
— Murali Krishnan (@legaljournalist) September 25, 2017
#MahmoodFarooqui: Communication of no consent unclear, Delhi HC. @barandbench pic.twitter.com/6m0d0NVgrr
— Murali Krishnan (@legaljournalist) September 25, 2017
#MahmoodFarooqui: Final reason for acquittal - there is doubt whether he could discern/ understand that there was no consent @barandbench pic.twitter.com/uhvC05l4YI
— Murali Krishnan (@legaljournalist) September 25, 2017
It's sad that the judiciary has not only let down the victim in this case, but has also dealt a massive blow to the idea of consent, the basic foundation of non-rape sexual activity. By weakening consent and what it implies, and discounting the woman's account and her trauma as irrelevant to the man's idea of "but-that's-not-rape", the Delhi HC has unfortunately and unwittingly perpetuated rape culture and its pernicious stranglehold on Indian society.