The December 16, 2012, gangrape in New Delhi, and the widespread public agonising and legal reform that followed it, helped redefine ideas of gender justice in progressive ways. Following the recommendations of the Justice Verma Committee, the Criminal Law (Amendment) Act, 2013, criminalised voyeurism and stalking. These changes in the law have been accompanied by a welcome expansion in the discussion on the rights of women in public and private spaces — the debate on whether or not India must criminalise marital rape, for instance, has been hearteningly joined. Against this backdrop, the reasoning of the Delhi High Court while overturning the trial court’s conviction in the Mahmood Farooqui vs State case is a let-down — both in terms of the maturing debate on consent and of the judiciary’s own record of enlarging spaces for individual rights.
The judgment ignores a basic, axiomatic principle: No means no. Consent, according to Section 375 of the Indian Penal Code, is an “unequivocal voluntary agreement”. The judgment equivocates: “instances of woman behaviour are not unknown that a feeble ‘no’ may mean ‘yes’.” While it acknowledges that the complainant and Farooqui’s prior friendship and familiarity do not have a bearing on the alleged rape, it tries to justify the “feeble no” obfuscation by claiming that “the relationship extended beyond a normal friendship or a relationship between a guide and a researcher”. A “feeble no”, it suggests, communicates a lack of consent only when the parties involved are strangers or “if one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world”. According to the court, therefore, the denial of consent in this case was ambiguous because the “parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts.” In so arguing, the judgement ignores facts — perpetrators of a majority of sexual assaults are known to victims, for instance. And veers towards unfounded psycho-social assumptions that unfairly seek to put the onus on the complainant. The dots can be connected to the victim shaming inherent in the ruling of the Punjab and Haryana High Court a few days ago, which while granting bail to three rape accused, spoke of the victim’s “experimentation in sexual encounters”, “promiscuous attitude and voyeristic mind”.
India’s judiciary has stood, often ahead of the times, and of society at large, for an expansion of the rights of the individual. The Delhi High Court, however, has displayed that it is behind the times in the way it imagines sexual consent.