Mahmood Farooqui, renowned Indian writer and director, was acquitted of rape charges on 25th September, 2017 by Justice Ashutosh Kumar of the Delhi High Court. Farooqui allegedly forced himself on a Columbia University researcher at his house in New Delhi in March 2015. The woman returned to the US soon after the incident and wrote an email to Farooqui, who apologized for “misbehaving” with her. Farooqui was convicted last year by a special fast-track court and was awarded a seven-year jail term. Farooqui immediately challenged the guilty verdict in the high court. Providing him “benefit of doubt”, Justice Ashutosh Kumar of the Delhi High Court set aside the trial court order and acquitted him of all charges.

Reasons for Acquittal

Now the question is what reason did the High Court give to acquit him of all charges and provide him with a benefit of the doubt? The Judgement debates the question of consent. It finds the traditional model of yes is yes and no is no problematic. According to the court, ‘the appellant has not been communicated’ that there was no consent of the prosecutrix. Despite clear evidence of the woman saying no ‘a feeble no may mean yes.’ There can be an affirmative consent or a positive denial, but it may remain underlying which could lead to confusion in the mind of the other.

The Judgement also states that human memory cannot be taken to be sacrosanct and accurate. It can be modified due to the existence of prior ideas and notions. Therefore ‘it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix’ has actually taken place. Moreover, Farooqui’s bipolar disorder is cited as a possible reason why he might not possess ‘the correct cognitive perception to understand the exact import of any communication by the other person’. The judgment not only questions the authenticity of the woman’s experience but also mentions Farooqui’s bipolar disorder as a possible reason why he might have misunderstood the nature of communication with the woman.

Implications of the Judgement

Giving the benefit of doubt to the accused on the ground of lack of cognitive perception to understand the communication has its own implication. The perception of the perpetrator is placed centrally in the judgment. This judgment completely dismantles the understanding of consent in the discourse of rape. It denies the understanding that a ‘no’ means a ‘no’. Concepts of affirmative consent or positive denial present and are ‘not uncommon’. Such a judgment has been termed as misogynistic and masculinist by many because the court has questioned the strength of the victim’s “no” and debated on whether the lack of consent was communicated in a way that Farooqui understood.

Conclusion

The Judgement has been condemned by many experts in the legal community. “I am deeply concerned with the language. It is an absolutely incorrect interpretation of consent, which has statutorily been defined already,” lawyer Rebecca John told the Times of India. She says the court is actually “adding on fresh parameters to the concept of consent which firmly has no basis in law and actually go against the letter of the law…”. “The judgment has turned the definition of consent on its head. What was meant to protect the woman has been made into a defense for the rapist’ lawyer Indira Jaising opined. Supreme Court advocate Madhavi Divan said the judgment shifts the burden to prove consent or refusal to a sexual act onto the woman.  Rejecting the Delhi High Court’s Judgements as ‘dishonest on fact and in law’ Advocate Vrinda Grover (counsel for the woman who accused Farooqui) has decided to move the Supreme Court challenging the acquittal order.

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