The judgment delivered by Delhi High Court’s Justice Ashutosh Kumar in the Mahmood Farooqui case sparked a fresh debate on consent on Monday. Farooqui, the Peepli Live co-director, was given the benefit of doubt and acquitted of rape charges.
Farooqui had earlier been convicted on 4 August 2016 of raping a 30-year-old American researcher in his south Delhi residence in March 2015. The basis of the judgment presented by Justice Kumar was:
Instances of woman behaviour are not unknown, that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied… But same would not be the situation when 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 such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent. [sic]
In headlines now for his “feeble ‘no’ means ‘yes” remark, Justice Kumar was a junior judge in the Patna High Court when he was transferred by the Supreme Court to the Delhi High Court in 2015.
His transfer to the Delhi High Court, while welcomed by the bar association, raised questions on how a junior judge was shifted to the much sought after position.
Going by convention, Kumar would otherwise be moved from the Patna HC after May 2015, on completing one year of his appointment as Additional Judge.
According to the Times of India, Kumar had opted for the transfer himself because his father also practices at the same court – an act that has been commended by the bar association for giving out a “message” to his colleagues “that the relatives of a judge should not get undue favour from his being elevated to the same high court”.
Since his elevation to the Delhi High Court, Justice Kumar has been on the bench for several significant cases, including one where the court condemned denial of justice to anyone in “over zealousness” to dispose cases.
Kumar, along with Justice Badar Durrez Ahmed noted that “a court may feel that case of a plaintiff is weak but that is no ground whatsoever for throwing out the suit lock, stock and barrel without giving the plaintiff an opportunity of proving and establishing its case”.
Besides this, in November 2016, Kumar issued directions to the governments of Punjab, Haryana, Rajasthan and Uttar Pradesh along with multiple governmental agencies to take appropriate action against the increasing pollution. “Our children deserve a clean environment,” Kumar noted.
Incidentally, on hearing a case about rising crimes against women in the capital, Kumar had told the Ministry of Home Affairs, “you know the problem, now find a solution”.
Kumar hails from Bihar and went to school at Patna’s St Michaels' High School. He later studied at Delhi University’s St Stephen’s College and went on to do his LLB from Campus Law Centre. He began his tenure at the Patna High Court in 1991, and as an advocate, appeared in crucial criminal matters, including cases related to death row convicts. He was also briefly government pleader for the state of Bihar.
(With inputs from PTI.)
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