The judgment of the Delhi High Court in the case of Mahmood Farooqui versus State, has acquitted Farooqui of all charges. The court exonerated the accused giving him benefit of doubt. He was charged with raping a 35-year-old researcher of Columbia University, who had come to India on a Fulbright exchange fellowship.
The high court's decision overturns the trial court's decision which had convicted him.
The Delhi High Court's verdict was a jolt for the evolving rape law jurisprudence of our country. Our criminal law went through a huge reform in the aftermath of Nirbhaya rape case and the definition of rape under Indian law was made very expansive. Indian rape law now includes forced oral sex as an act of rape in itself (Section 375 (d) of the IPC). In the instant case too, it was alleged that Farooqui had forced himself upon the prosecutrix to perform oral sex.
The verdict is erroneous on several legal grounds. Firstly, the high court allowed an alternate plea to be added by the defence which is completely contradictory to the initial plea. Alternate pleas are allowed and can be added at a later stage. Farooqui initially pleaded at a trial court that the act which he is being accused of, did not take place at all, that is, whatever the allegations are against him they are completely concocted. The alternate plea was that the act was consensual. This does not make any sense. One can either contest the claim of the rival party or concur with it. No one can do both, in different petitions.
Going by the first plea, the act didn't take place at all. A bare reading of the facts will render this argument completely false. The prosecutrix had emailed Farooqui, subsequent to the act, complaining about the incident, to which he replied "My deepest apologies". If no such act took place, what was Farooqui apologising for, and why is he, in fact, not contesting her claim? All these conversations are on record and are cited in the judgment. Even then, the high court, under Para 102, casts doubt on the happening of the event itself.
The court has also relied on the past and the future conduct of the prosecutrix, even while explicitly acknowledging that it is not doing so, in the judgment. It is a settled law that the past and future conduct of the prosecutrix can't be taken into account in such cases.
Under Para 96 of the judgment, the court acknowledges that the prosecutrix is a sterling witness in the case, which means that the evidence produced by her is of impeccable quality and shouldn't be disputed. It is also a settled law that such evidence by a victim of rape doesn't need any corroboration of any sorts and is enough to decide the case at hand.
The case of the defence was excessively weak and shouldn't have been allowed to hold any water in any court of law. Kapil Sibal, who appeared as Farooqui's lawyer advanced certain preposterous arguments. Sibal doesn't have a great track record when it comes to advocating women's rights, as was recently witnessed by his line of argument in the Triple Talaq case.
For instance, under Para 47 of the judgment, he contends, "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."
It has been brought on record that the prosecutrix responded to Farooqui with a clear 'no', but it so seems that for Sibal that wasn't sufficient. He implied that if there is a hesitant no, the accused is free to go on and violate the sexuality of the victim. Sibal, broadens his argument by saying that there might have been no consent on the part of the prosecutrix, but it wasn't conveyed to Farooqui in clear cut terms.
This reprehensible reasoning of justifying Farooqui's act was accepted by the court. Even when the court is clear in acknowledging the genuineness of the claims made by the prosecutrix, except for the fact that she couldn't effectively convey it to Farooqui, that she wasn't willing to engage in the activity with him. The court goes on to accept Sibal's logic that a 'no' on the part of the woman, may actually mean a 'yes', if it's a 'feeble no'.
There's a problem with this logic: it is none of the court's business to determine what is a feeble No and what is a-not-so-feeble No. The law under Section 375 Explanation 2, is clear, "Consent means an unequivocal voluntary agreement" by the woman. Which means the 'yes' needs to be emphatic and unequivocal, and it certainly can't be interpreted to mean a 'feeble no' is an emphatic and unequivocal 'yes'.
It is pertinent to refer to the Justice Verma Committee report, on whose recommendation, the 2013 Amendment to Criminal Law was made. Explanation 2, under Section 375 of the Indian Penal Code, was inserted on the recommendation of the committee. This recommendation was made on the basis of the Canadian rape law.
Under the Canadian law, the accused cannot make a subjective argument that he believed that there was consent, instead he has to prove that he took reasonable measures to ensure that there was unequivocal consent for the specific sexual activity. The argument of Sibal and the judgment of the court, therefore, are diagonally opposite to the letter and the spirit of the law embodied under Explanation 2 of Section 375, as is understood by examining the Canadian law, because that was the source of the amendment in Indian law.
It can be easily concluded that this is possibly the most regressive judgement, in a rape case, by an Indian court, after the infamous judgment in Tuka Ram versus State of Maharashtra, popularly known as Mathura rape case.
This verdict pushes Indian rape jurisprudence back by four decades. It can be optimistically hoped that this verdict will be overruled by the Supreme Court.
The author is a research fellow with the Department of Humanities and Social Sciences at IIT Bombay.
Published Date: Sep 28, 2017 14:12 PM | Updated Date: Sep 28, 2017 14:12 PM