The Farooqui Judgment’s Interpretation of Consent Ignores Decades of Rape-Law Reform and Catastrophically Affects Rape Adjudication

07 October 2017
The Delhi High Court judgment acquitting Mahmood Farooqui is deeply flawed, especially on the standard of consent articulated by the court. It is wrong in law, based on gender stereotypes, and ignores decades of rape-law reform.
Anna Webber/Getty Images
The Delhi High Court judgment acquitting Mahmood Farooqui is deeply flawed, especially on the standard of consent articulated by the court. It is wrong in law, based on gender stereotypes, and ignores decades of rape-law reform.
Anna Webber/Getty Images

On 25 September, the Delhi High Court acquitted Mahmood Farooqui of the charge of rape. Farooqui, a popular writer, director and dastangoi artist, was convicted last year, after a trial court found him guilty of raping a woman in March 2015. His acquittal has been controversial, to say the least: while some have stood the ground that Farooqui’s guilt cannot be established beyond doubt, many—if not most—have condemned the high court judgment acquitting him. The latter group has good reason: the judgment acquitting Farooqui is deeply flawed, especially on the standard of consent articulated by the court. It is wrong in law, based on gender stereotypes, and ignores decades of rape-law reform.

To recognise why the judgment is problematic, it is important to understand the context surrounding rape law under Indian legal jurisprudence. Section 375 of the Indian Penal Code (IPC) defines the offence of rape. It states that a man is guilty of rape if he commits a penetrative act under seven circumstances listed in the section, one of which is when the act is committed “without the consent” of the woman. The law requires the prosecution to prove beyond reasonable doubt that the act took place, and that the survivor had not consented to the act.

How is the lack of consent proved? The survivor is the primary witness in a case of rape. It is her non-consent which is the nub of the offence. The Supreme Court has held in various cases that a court may convict the accused based solely on the woman’s testimony that she did not consent, as long as the court finds it to be reliable. In order to infer that the survivor did not consent, it may rely on other corroborative evidence such as medical examinations, witnesses, and surrounding circumstances.

In assessing the survivor's testimony, courts have often looked to, and continue to do so, gender stereotypes and myths about rape. For example, the past sexual history of the survivor was considered a relevant fact until 2003, on the assumption that “promiscuous” women and women of “easy virtue” were likelier to have consented to sexual intercourse. That year, an amendment repealed Section 155(4) of the Indian Evidence Act, through which the defence could bring evidence of the “general immoral character” of the survivor. Similar stereotypes have informed much of rape adjudication—for instance, the assumption that rape was a violation of a woman’s chastity and honour. Women who were seen as “unchaste” therefore were either not likely to have been raped or were “asking for it,” or had not been harmed in the same manner as a “chaste” woman.

The Supreme Court has deprecated the use of such stereotypes over the last two decades, and held them to be irrelevant. After the change in 2003, the Evidence Act was amended again, in 2013, to expressly prohibit questions on the past sexual history of a survivor in rape prosecutions. The 2013 amendment was one among several recommendations of the Justice Verma Committee. The committee was constituted by the central government in December 2012—following the brutal gang rape of a woman in a Delhi bus—to recommend amendments to Indian criminal law on sexual offences against women. It noted the adverse impact that stereotypes and rape myths had had on rape adjudication, and recommended that these should not inform decision-making in rape cases. It asserted that rape is a violation of a woman’s sexual autonomy and bodily integrity. The recommendations of the committee, including the insertion of a definition of consent in Section 375, were based on this conceptual understanding.

Mrinal Satish is a professor of law at the National Law University, Delhi. He is the author of Discretion, Discrimination, and the Rule of Law: Reforming Rape Sentencing in India, published by Cambridge University Press in 2016.

Keywords: Mahmood Farooqui rape survivors Justice Verma Committee rape laws rape adjudication gender stereotypes
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