The Delhi High Court's judgment in the Mahmood Farooqui case has sent shockwaves across women's rights advocates in the country. It was thought unimaginable that such a situation would arise after the Criminal Law Amendment Act, 2013, that inserted a proviso to Section 375 of the Indian Penal Code to ensure that consent has to be unequivocal. This clause was inserted to switch India's jurisprudence on sexual assault to one where there is affirmative consent.
The proviso that was inserted as an explanation says this:
"Consent means an unequivocal voluntary agreement when a woman by words, gestures or any form of verbal or non-verbal communication communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by reason only of that fact, be regarded as consenting to the sexual activity (sic)."
This on a plain reading would imply, that the woman must consent affirmatively to the act and if she does not the act is sexual assault under Section 375.
But there is another provision of the Indian Penal Code that makes this problematic and the Delhi High Court used this provision to acquit Farooqui.
Under Section 90 of the Penal Code, "consent (is) known to be given under fear or misconception" or "a consent is not such a consent..." if "the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception...."
The Delhi High Court at Paragraph 80 in the Farooqui judgment says this about Section 90:
"What the aforesaid section of the IPC mandates is that the accused must know that the consent which was given was under a fear of injury or misconception of fact."
It then proceeds to look at the facts of the incident and eventually concludes that Farooqui did not know that the act was non-consensual and therefore gives him the benefit of the doubt and let him walk free.
The interpretation results in a situation where for consent under IPC to be looked at as something given under coercion, it is mandatory that the accused is aware of this fact, or, has a reason to believe that the consent is invalid, and, as a result, Farooqui was given the benefit of the ambiguity and allowed to walk.
Criminal law has to be construed strictly. This is the law of India. Courts cannot interpret the criminal law broadly and in case of any ambiguity in the laws, the accused must be given the benefit. For example, if the law only criminalises the possession of 50 or more grams of gold, then a person having 49.99 grams would not be covered under the section. Despite the fact that 49.99 and 50 is basically the same thing.
Unfortunately in this case Section 90 read with Section 375 mandates that the fact that an act is not consensual be communicated. Section 90 by its wording applies to the entire Indian Penal Code and therefore creates an element of men's rea (mental intent) in Section 375 which was not the intention of the legislature, in fact, it wasn't the intention behind the Nirbhaya protests. The law reform was supposed to ensure that when a woman says no, it means no, not just as far as she is concerned but also as far as the law is concerned.
Interestingly, the JS Verma Committee that was required to look into the rape laws post the 2012 Delhi rape case, had flagged this problem. They spoke about Section 90 of the Indian Penal Code but did not take this problem into account while framing the amendments. Further, the report of the Standing Committee of the Parliament that reviewed the Criminal Law (Amendment) Bill, 2012, also did not deal with this inconsistency that is created.
The inconsistency may be resolved by adding a Non-Obstante Clause (a clause that excludes other clauses) to the provision so that Section 90 doesn't affect the meaning of consent as far as Section 375 is concerned. This would remove the conflict between Section 90 and 375 of the Indian Penal Code that the Farooqui case has brought to light.
However, such a clause was not considered by the Parliament even though the JS Verma Committee report deals with Section 90 to some extent and Section 90 was also flagged by the 84th Law Commission as something that needs to be looked at while amending the law on sexual assault.
As a result of a cross-party legislative failure in the Parliament (the Standing Committee of the Rajya Sabha that reviewed the bill was cross-party and chaired by a member of the then opposition), when the Criminal Law (Amendment) Act, 2013 was passed, it was not comprehensive as there was no due regard paid by the Parliament to Section 90 of the Indian Penal Code.
There is an old poem from an anonymous book called Poetic Justice by JPC published in 1947, called the Parliamentary Draftsmen. The last stanza of the poem goes a little something like this:
"I'm the parliamentary draftsman,
And they tell me it’s a fact
That I often make a muddle
Of a simple little Act.
I’m a target for the critics,
And they take me in their stride.
Oh, how nice to be a critic
Of a job you’ve never tried."
This is quite apt for the situation we find ourselves in right now.
By overlooking a provision and not noticing an inconsistency in the intent, it has resulted in Mahmood Farooqui walking. This as not the intent of the Criminal Law (Amendment) Act, 2013. The act's intent was to make 375 as broad as possible and to eliminate the need for women who are coerced into actions to prove that they were coerced and to remove any inference that can be drawn by her actions under coercion.
The Parliament needs to fix the mess that it started when it passed a legislation that was not comprehensive. Every day this inconsistency exists, men like Farooqui can walk. The Court's hands are unfortunately tied by the four corners of the law. The Parliment needs to urgently fix the corners so miscarriages of justice like the Farooqui case can be avoided.
Your guide to the latest election news, analysis, commentary, live updates and schedule for Lok Sabha Elections 2019 on firstpost.com/elections. Follow us on Twitter and Instagram or like our Facebook page for updates from all 543 constituencies for the upcoming general elections.
Updated Date: Sep 28, 2017 20:59:42 IST