The Delhi High Court's judgment acquitting Peepli Live co-director Mahmood Farooqui has raised divergent views in the legal community on the grey line between sexual consent of a woman and rape.
The judgment by Justice Ashutosh Kumar holds that in the modern world where equality is the “buzzword” and where both men and women are “initiators” of sexual acts, consent should not be mere hesitation or reluctance, but a clear and unambiguous “no”. In short, there is no room for a feeble “no”.
Justice Kumar gave the benefit of doubt to Farooqui on the ground that he had no intention to rape her and it was unclear that she had refused consent. The court noted that since both Farooqui and the woman are “persons of letters”, little or no resistance and a feeble refusal cannot be counted as actual refusal.
Former Additional Solicitor General and noted human rights lawyer Indira Jaising termed the order a “sophisticated but deeply flawed judgment on whether or not rape took place”.
“The judgment creates a new defence for the rapist which does not exist in law. There is a double presumption – absence of intention to rape (by the accused) and non-communication by the woman despite a clear 'no' from her. The judgment has turned the definition of consent on its head. What was meant to protect the woman has been made into a defence for the rapist. The judgment is dangerous and will allow no conviction for rape at all,” Ms. Jaising reacted.
She said the judge “has invented a defence for the accused, which the latter did not make or have in law. The case of the accused (Farooqui) was bare denial (of rape). But the judge introduces his own belief that the woman did, in fact, consent. The burden of claiming such a defence, based on actual proof and evidence, was on the accused. Therefore, the judgment converted what was decidedly a defence for the accused into the presumed consent of the victim”.
‘Burden on woman’
Supreme Court advocate Madhavi Divan said the judgment shifts the burden to prove consent or refusal to a sexual act onto the woman. “I am not saying that she consented or could be presumed to consent. I am only saying that non-consent was harder to prove in this case and she (the complainant) could not establish having conveyed it to him beyond reasonable doubt”.
Ms. Divan said the judgment is correct considering the facts of the particular case. “What the court has effectively said is the surrounding facts – the past intimacy, her conduct that evening before, during and after the incident coupled with his (Farooqui) own emotionally disturbed condition, which was known and apparent to her, could not lead to a clear picture of non-consent in his mind... I thought the court was sensitive in the manner it approached her response – the trauma and prolonged distress and even denial that accompanies victims,” Ms. Divan said.
Rajya Sabha MP and senior advocate K.T.S. Tulsi also agreed with the judge's conclusions in the case. He said, “Sexual consent has to be categorical. The facts related in the FIR and the High Court judgment shows that the two had gone halfway. In such a situation, the woman's refusal should have been unambiguous. At that point, the burden shifts to the woman to make her refusal clear.”
Call for appeal in SC
Supreme Court Women Lawyers Association president and senior advocate Mahalakshmi Pavani said the judgment presuming consent was “outrageous”. “Why did the woman register an FIR, stand by her version through the trial if she had consented to the act? This judgment should be appealed against in the SC,” Ms. Pavani said.