Does the Mahmood Farooqui Judgment Make Sense At All?
It turns the tables on the victim saying that unless there’s a firm ‘no’ it doesn’t amount to lack of consent.
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(On 19 January 2018, the Supreme Court dismissed an appeal filed against the acquittal of Mahmood Farooqui by the Delhi High Court on rape charges. This article was first published on 26 September 2017 and is being reposted from The Quint’s archives in the light of Justice Bobde and Justice Nageshwar Rao's endorsement of the HC decision.)
The judgment acquitting Mahmood Farooqui of rape does not make any sense. The first 101 paragraphs of the judgment bear little or no relation to the ultimate conclusion delivered in the next two paragraphs: that Farooqui deserves the benefit of doubt and should therefore be acquitted.
The judgment is so full of contradictions and baseless presumptions that even Farooqui’s legal team would be hard pressed to defend it in appeal. It is a travesty almost at par with the Karnataka High Court’s infamous mathematically incorrect judgment acquitting J Jayalalithaa in the disproportionate assets case, and deserves to be set aside summarily by the Supreme Court.
It is a well-established principle of criminal law that the accused cannot be held guilty without the prosecution having proved the case beyond reasonable doubt. This, however, is not to be applied on the basis of the personal whims of the judge in question but on a close and careful analysis of the evidence.
The trial court in Farooqui’s case went to great lengths to examine the statements of the witnesses, and all the material evidence (including time-stamps on messages and mobile tower pings) before concluding that the victim was alone with Farooqui when the incident was alleged to have taken place.
The trial court’s order examines the post-incident conduct of the victim, her messages to friends and family, and even to Farooqui to conclude that there is truth in her allegation. The analysis of whether there was consent notes that there was nothing to suggest any definite and undeniable consent to sexual activity, and in its absence, holds Farooqui guilty of rape.
The High Court perversely does not dispute any of this. There is no finding of facts which the High Court finds to be categorically untrue or baseless or not justified on the basis of evidence. Rather, it is on the somewhat perverse notion that Farooqui did not understand that there was no consent on the part of the victim.
This too is not a finding that can be justified on the facts since the record shows categorically that the victim did say ‘no’, on more than one occasion, and her conduct initially also indicated a lack of consent for sex.
The High Court also accepts that there is no basis to the claim that Farooqui was so mentally ill so as to not understand the concept of consent, and yet proceeded to give him “the benefit of doubt”.
The judgment also completely misreads the legal definition of “consent” as provided for in the newly introduced explanation 2 to Section 375 of the Indian Penal Code.
Despite the law requiring an “unequivocal voluntary agreement”, the High Court simply refuses to make any finding on the unequivocal and voluntary nature of the consent. It proceeds on some bizarre and unverifiable assumptions on what consent is, and turns the tables around on the victim arguing that unless there is a firm ‘no’ it does not amount to lack of consent!
The judgment speaks of “studies” on more than one occasion for its questionable assertions on consent but never bothers to provide any citations, or even a link to such studies. Such a cavalier attitude in writing is unacceptable from a first year law student, to say nothing of a judge of the High Court.
Would a man who does not enjoy the kind of privileges and standing in society be granted a “benefit of doubt” in a similar situation, like Farooqui? Going through the judgment, one does not get such a sense.
At every stage, the judgment reads like someone trying to convince himself that a person with Farooqui’s education, background and standing in society could never commit such a crime. As unimpeachable a witness as the victim turned out to be, as cogent as her testimony was, as detailed as the investigation by the police and the findings by the trial judge were, the High Court does not believe any of them because it does not want to.
Men in positions of power and privilege who commit sexual assault and get away with years of sexual harassment do so because there is an ecosystem which protects them. This ranges from public support arguing that it wasn’t “rape rape” (like what Falvia Agnes said in Farooqui’s case) to judicial authorities giving them the “benefit of doubt” in a trial.
It is somewhat ironic (but perhaps not unexpected) that many of the same people who rushed to Farooqui’s defence claiming doubt and disputing lack of consent were also those who campaigned for the amendment of India’s criminal laws following the Nirbhaya gang-rape.
The trial court judge in this case has perfectly understood the exact change in the law – that it lays emphasis on lack of consent on the part of the woman more than the manner in which the rape took place. And it is a shame that the High Court has simply refused to do so.
(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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