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.