The Supreme Court last week dismissed an appeal filed in the case of the theatre-personality and writer well-known for reviving Dastangoi, Mahmood Farooqui; an American visiting India had challenged his acquittal in a rape case she filed against him in 2015. Before proceeding further, I must disclose that Mahmood and his wife are my friends.
In 2016, Mahmood Farooqui was found guilty by the trial court after spending four months behind bars without bail. He spent another 14 months in jail before being acquitted by the Delhi High Court on appeal.
The facts of the case as alleged by his accuser were that she knew Mahmood and had exchanged consensual kisses with him on previous occasions. She claimed that on the day in question, the accused performed oral sex on her which she did not in her mind want, but to which she submitted as she had heard that in the infamous Nirbhaya gang rape-murder, one of the accused had said that if Nirbhaya had not resisted, she would not have been killed. So, she said, she pretended to have an orgasm in order to end the encounter.
In my opinion, the accusation of rape in such circumstances was absurd. Even if what the accuser in Mahmood's case said was true (and he consistently denied it), this did not morally or legally make out a case of rape as understood by any reasonable person. Also, the explanation for the alleged unwanted submission to oral sex had disturbing shades of EM Foster's "A Passage to India" set in colonial India where an Englishwoman faints in a cave with an Indian doctor; he brings her out only to be accused of rape! What also scared me was how Mahmood was immediately taken into custody and denied bail for months as if he were a dangerous criminal who had to be kept locked up even before his case was decided.
But I was told by criminal lawyers that the new rape law rushed through after the Nirbhaya case was extremely strict. There was no distinction between types of sexual assault - penile rape was treated the same as digital or oral manipulation of sexual parts. I was also told that bail was extremely difficult, especially in high-profile cases. Mahmood was a well-known theatre and film personality, the press were all over his case, and prominent feminist activists had publicly condemned him even before the trial.
I had been taught in law school that to make out a crime, two things had to be shown. First,
actus reus - the act of the accused. Second,
mens rea - the intent of the accused. So, for example, if a man dies because he hit the ground when you banged into him, a crime is or is not made out depending on whether you intentionally banged into him to kill him.
Sometimes, morally, a man may be guilty of a crime that he did not intend. For example, if he kills someone while driving recklessly. For this you have the concept of manslaughter, where you are held guilty, but of a lesser crime than murder, and with a proportionately lower punishment.
The law often leaves us unsatisfied because it uses technicalities to gloss over fraught moral questions. There is an inherent injustice in the meting out of justice. But the law is aware of this limitation and tries to compensate in different ways. In criminal law, it does so by looking at intent, and gradations of crime as in the murder-manslaughter example. This is a key element of a just system: to inject a degree of compassion and discrimination when sealing a man's fate.
But all this seems to have been given the go-by in the new rape law. What is curious about the new rape law is that it was enacted at the urging of human rights lawyers and activists who spent most of their careers asking for precisely the protections that it did away with. There was a bitter irony in Mahmood Farooqui being condemned under the Nirbhaya rape law when the main perpetrator in the Nirbhaya case had been let off under our absurdly lax juvenile crime laws. There was the double irony of both sets of laws having been championed by the same human rights groups.
I had asked a well-known human rights lawyer the logic of the laws that let off the main Nirbhaya murderer. That man was days shy of 18 years of age when he gang-raped and killed Nirbhaya, shoving a metal rod into her and dragging it out with her intestines. The human rights lawyer replied that we must be compassionate and give people second chances. I didn't like it, but I had to agree. I can't really think of a good argument against giving people second chances. But what I could never understand was why this noble sentiment failed to move the same people when looking at Mahmood Farooqui's case. The new rape law was pitiless. It gave the judge no discretion to award less than a seven-year jail term while at the same time making a virtually strict liability (meaning regardless of intent) crime of rape for all kinds of sexual interference - whether digital, oral or penile.
What sent a chill down my spine was how easy it was to accuse a man of rape. Mahmood Farooqui was a fully-grown, successful man. What if accusations like this were made against young boys in school or college, just starting out on life? What was the protection from jilted lovers making false claims? What was the protection from misunderstandings at a drunken college party? What about people who indulge in sex acts consensually and feel uncomfortable later, persuading themselves it was non-consensual? And what exactly are we punishing? Are we punishing rape, or the initiation of sexual engagement intended to be consensual for both? And in doing so, even where there is a history of intimacy, are we treating a kiss the same as sexual intercourse? Shouldn't rape laws have some filter for all this before condemning a man to nearly a decade in jail?
No one other than the accused and accuser in Mahmood's case know what happened between them on the fateful day. But this is a situation that the law often encounters. Crimes are committed or alleged, and there are no witnesses. This is why the criminal law in particular has a number of filters: placing the burden of proof on the accuser, looking for evidence of the accused's intention and allowing a judge to weigh the circumstantial evidence. Perhaps it is right to remove these filters when you are looking at a situation where even to allege rape is taboo, where the woman has no voice. But while this is true in some situations, it is not true in others. Our rape law should allow a judge to make a sensible distinction between women who need a gender-biased interpretation of the law, and those who don't. If it is not possible to write such an
a priori distinction into the law, then we should allow judges to develop principles for doing so on a case-by-case basis.
This is what the High Court judge did in Mahmood Farooqui's case. I too baulked when I came to that line about "a feeble No may mean Yes". Expressed in that way, as a principle of law, it has dangerous implications. But it was not expressed in the judgement as a principle of law. It was what lawyers call
"obiter dicta" - observations by the judge in a particular case that do not form the
"ratio decidendi", that is, the legal principle on which the judge's decision was based. The High Court acquitted Mahmood Farooqui first and foremost on the ground that the record did not prove incidents as alleged by the accuser. The second ground was that
assuming that the incidents occurred as alleged, they did not make out the crime of rape in the context of a relationship between adults of equal social standing, having some degree of pre-existing physical intimacy and the non-expression of the lack of consent at the time by the accuser. The High Court stated its conclusion thus: "it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the will/consent of the prosecutrix, and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same."
Does this leave us with an unjust rape law? Not at all. This judgment prompts us to think about what kind of consent-requirement the law of rape should have; should the standard be "Yes means Yes", or "No means No", or "No could mean Yes" or "Yes could mean No"? These are relevant issues, and the judgement does not in any way close the door on them. The judgement takes the view that these are issues to be worked out case by case. Indeed, judges
had been so working out the knotty issue of consent even before the rape law was amended. I hope that public opinion will not be swayed by a few words, perhaps injudiciously used, in an otherwise sound and respectful judgement.
(Suranya Aiyar is a lawyer and writer.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.