In acquitting writer-film-maker Mahmood Farooqui of the charge of rape, the Delhi High Court concluded that it could not be established without reasonable doubt whether the incident took place. The rationale of arriving at such a conclusion may be debatable, but it is the court’s reasoning on the issue of consent that is unsettling. It ruled that even if rape had taken place, it is doubtful that it was without the consent of the American researcher who pressed the charges. The court, by and large, accepted her version of events, described her as a stellar witness, and found that vital aspects of her testimony were corroborated. It rejected doubts raised by the defence based on her behaviour after the incident, saying she was only manifesting signs of post-rape trauma and disorientation. At the same time, in saying that the victim’s unwillingness was only in her mind, the judge gave credence to Farooqui’s defence that he was unaware of the lack of consent. When the court raises a doubt as to when exactly the consent was withdrawn, it seems the victim is being faulted for the man failing to comprehend a ‘no’. Requiring a victim to prove that her refusal had been understood by the person who assaulted her is an unreasonable burden. It may aid the use of consent as a defence against a rape charge. Consent, a major ground for defence in rape cases, was allowed to be raised in the appeal although it was not made during the trial, which resulted in the conviction and imprisonment.
The Delhi High Court’s verdict may be largely free of the kind of platitudinous moralising that finds its way into judgments in such cases. But it can be held to account for casual phrasing, which makes it hard to distinguish between its own views and those of the defendant’s counsel in some places. Also for unnecessary and indefensible remarks such as the one about “feeble hesitation”, which it said does not amount to a positive negation of advances. Earlier this month, an order of the Punjab and Haryana High Court suspending the 20-year prison term imposed on students of a private university for gang-rape, and granting bail to them, was notable for its sweeping comments blaming the “degenerative mindset” of youth for the offence. In effect, it sought to shame the victim as one given to casual relationships and adventurism. Judicial decisions containing a mix of sound law and regressive personal opinion are not uncommon. Some blame victims of rape or insinuate that they had brought shame on themselves and their families. When superior court orders contain such remarks, there is an inherent danger that they could be seen as a legal basis for deciding cases of rape. These cases, like any other, must be decided on evidence, and courts should avoid tangential theorising.