Out of Order

Dismal reality of Indian women in the age of Time's Up movement

There are a few parallels one can draw between the Aziz Ansari incident and Mahmood Farooqui case, experientially, if not legally.

 |  Out of Order  |  8-minute read |   20-01-2018
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With courage and compassion, badges and black gowns, the American entertainment industry is beginning to unravel. Brave women have come forward to hit the brakes on the old order that once drove happily along, fuelled by Woody Allen and Bill Cosby, the grand uncles of progressive values and rape allegations; accelerated by Louis CK, liberal-comic-in-chief and penis-flasher-extraordinaire and driven by Harvey Weinstein, who simultaneously pumped money into Good Will Hunting and semen into potted plants.

While their actions fell within the realm of “illegal” acts and activated the “due process” revolutionaries, the allegation against Aziz Ansari threw the conversation open to a whole new world - one where some acts may not be outlawed, but can still be seen as problematic. The movement has garnered a lot of strength, and as Oprah Winfrey announced in her customary “you-get-a-car" roar at the Golden Globes, “For too long, women have not been heard or believed if they dare speak the truth to the power of those men. But their time is up. Their time is up. Their time is up.”

But as we turn off the TV and run out of free New York Times articles for the month, it’s time to face our own reality. Our entertainment industry is brimming with allegations of sexism, casting couch, abduction, rape, exclusion and, of course, the ever serious “offending religious sentiments”.


And anyone who stands up to this is either trampled over by Karan Johar and his chariot of well-bred horses, as Saif Ali Khan likes to call star kids; threatened to have their face apparatus skillfully removed by the Karni Sena or turned away without an opportunity of being heard by the Supreme Court. Let’s focus, for now, on this last one.

As we stood up to applaud the four judges who spoke out against questionable practices within the administrative and ethical functioning of the institution and its no-nonsense take on the release of Padmaavat (or whatever the cool goons are calling it nowadays), it’s important to consider that today that very institution dismissed the special leave petition (SLP) filed by the survivor in the Mahmood Farooqui case to challenge his acquittal by the high court.

Remember the judgment that hammered the idea of a “feeble no” into our collective consciousness?

It will now, most likely, be allowed to stand unchallenged, without so much as a hearing.

The question of consent

The allegation against Farooqui, filmmaker and darling of the progressive-woke community, was made by an American Fullbright scholar, wherein she stated that he performed forced oral sex on her. The trial court convicted him and sentenced him to seven years in prison. This was overturned by a single-judge bench of the high court, which, through a garbled definition of consent and even more confused application of sections in the Indian Penal Code that define it, gave Farooqui the "all-clear" to go on, as if nothing ever happened. Due process.

Bear with me, because this is technical. Section 90 of the Indian Penal Code declares that consent is not consent as intended in the statute, if it is given by a person under fear of injury or misconception of fact, and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.

This is at odds with the definition under Section 375 that defines both rape and consent - the latter as "an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act". Also known in my personal law notes as the “yasss queen” definition.

In law, the judgment is problematic for several reasons, here are two that particularly struck me (and relate directly to consent), briefly, in point form. These are also pleaded in the special leave petition as grounds for appeal (though obviously worded differently):

1) The high court held erroneously that Farooqui had no knowledge that the consent was either denied or given under fear by invoking Section 90, which falls within the “general exceptions” chapter of the Indian Penal Code which can be pleaded as a defence in certain circumstances. Statutory procedure (under Section 105 of the Criminal Procedure Code) mandates that the court shall assume absence of these circumstances to bring a case within the general exceptions, unless such circumstances are proved by the accused. This was not done. Due process.

2) Also pleaded in the SLP is that Section 90 can also not be invoked, since the definition in Section 375 which deals specifically with rape overrides the definition in Section 90.

Though SLPs are to deal primarily with questions of law, actually, the high court judgment’s idea of consent even based on its own accepted version of facts is flawed. In the said version, the court states that the survivor “says no and gives a push but ultimately goes along” (yes, because a man ignoring “no” and “a push” and proceeding to introduce his mouth where it doesn’t belong is the woman “going along”). This is grossly violative of the definition of consent as per Section 375 mentioned above - there is no unequivocal or voluntary agreement by any means.

This is it

But these, and other arguments against this judgment will only exist in op-eds and newspaper articles, they will not be heard in court or challenged by an adversary in black robes. Today LiveLaw reported the transcript of the proceedings to admit the SLP. The bench comprising justice SA Bobde and justice L Nageswara Rao, said things like: “There is a positive response from her end which she says was fake. How was the respondent to know that the response is false? Explanation 2 makes no difference. She may have been afraid, but what she did was opposite of being afraid. She responded to the allegedly forced sexual act in a positive manner.”

For reference, the bench here is referring to the orgasm she faked “so as to end the ordeal” (the high court’s words, not this *points at self* crazy feminists). This statement by the bench alone leaves me with two lingering thoughts, along with the now-dull feeling in our stomachs we identify as rage.

Firstly, that this requires a hearing and not an off-the-cuff dismissal, and secondly, that this requires a hearing by people who aren’t exclusively men above the age of 50. Unfortunately, neither of these two things will happen.

The parallels and differences

There are also a few parallels one can draw between the Aziz Ansari incident and Mahmood Farooqui, experientially of course, if not legally. I say this not in terms of the mental state of the survivors or perpetrators, because those are deeply subjective and not open to my speculation, but by way of the overall chain of events and the definition of consent.

Both entailed different versions and volumes of the word “no” expressed by the women on various occasions and both were unsuccessful due to the inability of the men in question to acknowledge them. While Grace (the pseudonym of the woman who spoke about Ansari) said “I don’t want to feel forced”, the woman in the Farooqui case said “No” and pushed him away. Both of these incidents ended in a continuation of sexual acts anyway - oral sex to be particular, but, of course, both have very different legal repercussions. There is also the palpable play of power dynamics.

The difference between the two incidents is also conspicuous. It is that in the case of Farooqui, the matter went to court to be subject to the machinations of “due process”. An erroneous acquittal and a problematic dismissal of an SLP on deeply entrenched black-and-white notions of “orgasm equals to pleasure and consent” or “prior friendship equals to no rape”. A special leave petition is supposed to go into the questions of law. But what chance does due process have before due bias?

We won’t be getting our Time’s Up moment anytime soon. Certainly not from Bollywood.

Also read: There's a rape joke that goes like this


Asmita Bakshi Asmita Bakshi @asmitabee

The writer is a law graduate and ball of rage. She tweets @asmitabee and eats everywhere

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