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Way back in 1972, a tribal girl was raped in custody by two constables in Desai Ganj Police Station in Maharashtra. The Supreme Court in Tuka Ram v State of Maharashtra[1](also known as Mathura’s rape case) acquitted the two accused policemen on the ground that the victim has raised no alarm, there was no visible injury mark on her person thereby it could be assumed that she has consented and not protested, she is habituated to sex, `she might have incited the two drunk policemen’ and therefore no rape is committed. Immediately after this verdict is pronounced, four legal luminaries, wrote an open letter to the Chief Justice of Indiaprotesting against the manner in which the accused have been acquitted and the concept of consent has been defined by the Court. Subsequently, the Criminal Law (Second Amendment) Act, No. 46 was introduced in the year 1983 and the provisions relating to rape law were amended. During the process, attempts were made to elaborate on the concept of consent, to put the onus of proving the guilt on accused rather than the victim, believing the victim’s version, emphasis on not taking into account the past sexual history of the victimduring the trial and similar such reforms were made. Recently, the Supreme Court, while pronouncing its verdict in the Nirbhaya’s rape case[2]too has upheld that the victim’s version alone is sufficient for the conviction of the accused. The progressive reforms, therefore,have been made in the rape laws until now, till the judgement delivered by the Punjab and Haryana High Court[3] in the Jindal University rape case on 13th September 2017 as well as the one pronounced by the Delhi High Court in MohdFaroouqi versus State (Govt of NCT of Delhi)[4]on 27th September 2017,while neglecting the Nirbhaya’s case decisionpronounced on 5th May 2017 and overlooking the reforms in the rape law, once again reopened the debate on consent in such cases and redefined what constitutes rape. Appalling attempts were made to dilute the provisions of the rape law. These two callous decisions by two different High Courts, one after the other, dismantled the concept of consent, ripped apart the framework of justice as well as dignity of women and made a dent on the concept of autonomy of a woman. These verdictsshow that patriarchy still prevails and that the sexist misogynist mindset within the court rooms has not changed. The law embedded in patriarchal socio-cultural and sexual norms fails to see the rational logic and objectivity and negates to see the concept of consent in its wider perspective thus pushing down the regressive reasoning against which the women’s movement has painfully struggled for long.Both the High Courts, Delhi as well as Punjab and Haryana with their anti-women patriarchal and regressive views completely overturned the gains made in the arena of women’s rights by negatively and conservatively interpreting the definition of consent while reifying the old stereotype of an ideal rape victim, rape, resistance and consent. These verdicts have made a deep blow to the hard-won progressive advance and points to overt and covert backlash against gender friendly laws.This politics of backlash which highlights misuse and abuse of gender sensitive laws is much more evident in these judgements and needs to be countered and confronted by articulating and utilizing a radical understanding of feminist jurisprudence.

From Mathura to Nirbhaya: The Reform in the Rape Laws

Mathura was between 14 and 16 years of age, poor, orphaned tribal girl when she was raped by the two constables at night inside the Desai Ganj police station. This incident took place in the year 1972. There was a stigma attached to rape then. Yet, Mathura bravely fought against her oppression. The Session judge hold Mathura as a liar and the one habituated to sex. It pronounced a reverting verdict. On appeal, the High Court penalized one of the constable form five years imprisonment and another accused was directed to be imprisoned for one year. The case then went to the Supreme Court. The Supreme Court overturns the conviction of perpetrators and upheld the decision of the Session Court. The Supreme Court could not visualize and understood the trauma and silence of a young girl in the custody of those who assaulted her were in position of authority. The colonial male dominated mindset, the Victorian notions of morality and the regressive patriarchal understanding operated when the Court pronounced its verdict then. The case gained momentum in both social and legal terms because of the protests it sparked and eventually it led to reform in the rape law in 1983[5]. Rape since then has been construed as brutal act of abuse of power and custodial rape further attracts stringent punishment.

Since then, various decisions have been pronounced where it has been held that rape adversely affects a victim psychic and some even argued that “Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity — it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely”[6]. Though the courts took patronizing approach and have dwelled upon the concept of hurt and the honour, yet, in many cases they have adopted a sympathetic approach towards the rape survivor. In State of Punjab v. Gurmit Singh[7] it was stated that, “We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity”. In BharwadaBhoginbhaiHirjibhai[8]it was explained that if the evidence of the victim does not suffer from any basic infirmity and the “probabilities-factor” does not render it unworthy of credence, there is no reason to insist on corroboration except corroboration by the medical evidence.In State of Punjab versus Ramdev Singh[9] it has been said that the prosecutrix stands on a higher pedestal than an injured witness.

Amidst these positive progressive decisions on rape law, it may be added, that it is not that the courts have not expressed their regressive mindset. Rather there are number of decisions[10] where the courts have taken anti-women stand and the victimized the women survivors who attempt to seek justice.Yet in many cases, the courts have also acted to provide the justice to the victims. There are matters where the courts have let off the accused because the accused has married the victim[11], or where the police has pressurized the victim to compromise[12] despite of the fact that rape is a non-cognizable, non-compoundable and non-bailable offence. Complaints of rape by women have been rejected because there are no marks of injury on the body of the victims or the signs that show that she has not resisted or she that she has consented[13]. At times, promiscuity has also been used as a defence to acquit the accused[14]. Often, accused persons have been released on the pretext of his age, loopholes in the investigation[15], or it is alleged that the complainants have filed false cases[16]. Shockingly, in Bhanwari Devi’s case the court opined that the higher caste people cannot rape lower caste women and acquitted the accused persons while giving other similar unreasonable arguments[17].

In December 2012, after the brutal gang rape of Jyoti Singh in a moving bus in Delhi, the strong outrage erupted where men and women from different sections of society came together demanding the severe penalty to be given the accused persons. In the wake of these protests, the country witnessed an emerging debate around sexual violence, safety of women and consent while substituting the taboo and stigma surrounding rape[18]. The Justice Verma Committee formulated immediately after the public outrage put forward many recommendations including broadening the definition of rape while adding provisions relating to criminalization of marital rape, introducing stringent punishment and to pragmatically deal with the issue of consent in rape cases among others. The government, however brought the Criminal Law Amendment Law[19] in 2013. Legal reform recognized the principle of affirmative consent based on the principle that consent must be nothing short of an unequivocal positive ‘Yes’ (whether through words or gestures) to engage in a sexual act. This law defines consent as, “an unequivocal unilateral agreement when a woman by words or gestures or any form of verbal or non-verbal communication communicates willingness to participate in in the specific sexual act”. It is clarified that absence of physical resistance would not itself amounts to consent. The object of such amendment to the definition of consent is to thwart the patriarchal and prejudicial reading of presence of consent in the judicial discourse where the past sexual history of the victim, absence of physical injury and other such aspects are avoided so that the victim could access justice without victimization or its threat.

This amendment made in 2013 also expanded the definition of rape to introduce clause vii in the Section 375 which states that a man would be said to commit a rape if a woman “is unable to communicate her consent”. Narrowly construed, it may imply that a woman is unable to communicate her consent because of her physical or mental infirmities or illness or intoxication of for any such reason, yet in case if these provisions are broadly analyzed it may also include the situations where a woman is not given space to communicate and be heard of and therefore it may be said that she is unable to provide her consent.  When read with the requirement of `unequivocal unilateral agreement’, it mandates that the sexual acts which are performed in callous disregard of a women’s desire would constitute rape[20].  Thus, in any sexual interaction, it becomes essential that a woman is assured sufficient space and time to formulate and communicate her consent to a specific sexual act.

The Supreme Court while pronouncing its verdict in Mukesh and others versus State for NCT of Delhi[21](Nirbhaya’s case) too confirmed the award of death penalty to the accused persons while describing the act of gang rape and death of the victim as `brutal, barbaric and diabolic’. Justice Bahnumati while concurring with the majority verdict opined that “Crime against women is an unlawful intrusion of her right to privacy, which offends her self-esteem and dignity” therefore it is the duty of the court to carefully appreciate the evidences while dealing with the cases of rape. She emphasized that the “Court must act with utmost sensitivity and appreciate the evidence of prosecutrix in lieu of well settled legal principles”. She further clarified that “It is now well-settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination etc., if the same is found natural and trustworthy”. It is further elucidated that the “Persisting notion that the testimony of victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood. Ours is a conservative society and not a permissive society. Ordinarily a woman, more so, a young woman will not stake her reputation by levelling a false charge, concerning her chastity.” She further elucidated that “There is no legal compulsion to look for corroboration of the prosecutrix’s testimony unless the evidence of the victim suffers from serious infirmities, thereby seeking corroboration”.

Thus, the Supreme Court in the said judgement clearly established the principle that the rape as an offence requires a different treatment in our male dominated society where the patriarchal societyis hostile to women, in general and whereas the reported cases of crime against women are on rise.Thus, in catena of cases, the courts have directed to deal with the matter relating to rape sensitively and have held that the conviction can be found on the testimony of prosecutrix alone unless there are compelling reasons to seek corroboration. It is stated that “the evidence of prosecutrix is more reliable than the injured witness”[22]. Though there are several cases mentioned above where the court has acted in a regressive manner while curtailing the rights of women and favoured the accused on one pre-text or the other[23] yet, in the Farooqui’s case as well as in Jindal University’s case, all positive reforms in the arena of rape law, consent and on the issue of testimony of witnesses were disregarded and old regressive principles enunciated in the Mathura’s rape case were brought back in a new jacket in the zeal to show protect the male fraternity while overlooking the law reform or the pronouncements made in Nirbhaya’s and similar other cases. The politics of backlash against gender friendly laws show its ugly face in both these decisions by the Delhi High Court as well as the Punjab and Haryana High Court.

From Nirbhaya to Farooqui is Going Back to Mathura’s Verdict: Regressive Mindset Negated the Positive Law Reforms

In Farooqui’s matter[24], the Delhi High Court while pronouncing its verdict 38 years later after the Mathura rape case, over ruled the trial court decision and brings back the same age-old concept of consent in a new form. This decision is delivered in September 2017, a few months later after the verdict announced in Nirbhaya’s matter. This judgment by the Delhi High Court has twisted and manipulated the issue of consent while focusing on the perception of the perpetrator rather than the victim. This verdict took the legal and social understanding of consent back several decades by claiming that “instances of a woman’s behaviour are not unknown that a feeble ‘No’ may mean ‘Yes’.” This verdict also formulates different legal standards required for deciphering consent in cases involving “conservative” women and those involving “intellectually/academically proficient” women for whom “equality is a buzzword.” The court while construing the concept of formal equality’ rather than the substantive equality within a man-woman relationship holds that when both men or women could initiate a sexual relation, but the onus of communicating consent lies with a woman. And such communication should not be merely deduced by a woman’s hesitation or reluctance but she should clearly communicate unambiguousNo’. The judge gave benefit of doubt to the accused on the ground that he has no intention to rape her but it is also not clear that the prosecutrix has clearly refused to the sexual act. It is further added that the woman has not resisted and even if she has resisted it may be construed as a feeble’ resistance which cannot be counted as refusal. The court therefore created a new parameter of determining the consent of a woman while revoking the age-old defence of women’s consent in a new devious, astute and layered form. The court harped on deeply flawed concept of double presumption – the absence of intention of rape by the accused and non-communication of consent by the woman in the form of clearNo’ from her.

Similarly, the Punjab and Haryana High Court in its order pronounced on 13th September 2017 in the Jindal University rape case while releasing the three accused on bail not only patronize but end up in viciously attacking, blaming and shaming the victimand made several claims regarding the credibility of the complainant’s story and its reliability while giving irrelevant, inhuman and baseless grounds. In this matter, the three accused were former students while prosecutrix was the student of the Management School at OP Jindal university. The case of prosecutrix was that she was forcefully made to comply with sexual demands against her will over the period of two years before she filed complaint. The court while putting the perpetrators and the victim on the similar pedestal observed,“The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world”. It further in a dominant tonethe added that, “The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer compelling reasons to consider the prayer for suspension of sentence favourably particularly when the abused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.”The sexist court questioned the victims’ habit of consuming cigarettes, alcohol, condoms, her sexual conduct and held that the crime was not ‘gut-wrenching’ enough to hold the accused liable. The court thus categorized the degrees of rape and opined that only serious grave `gut wrenching’ crime should be punished and other rapists could walk scot free merely because the crime was not gruesome. The court quantified the sufferings of victims and invented the new principle that penalty must be proportionate to the sufferings of victim and that the rapist should be punished when he commits something more severe than raping a woman. While preaching on a woman’s morality and sexual conduct of the victim, the court added, “We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternative conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind”.In so doing, the Punjab and Haryana HC has strengthened the dangerously patriarchal notion that rape is not rape when the woman is “promiscuous”, and that the “promiscuous” women invite rape since their “promiscuity” can be read as consent.  The decision stands in clear violation of the Indian Evidence Act which specifically prohibits referencing the victim’s sexual history or character in adjudication of cases of sexual assault.The court failed to take into account the fact that rape is rape and it knows no boundary, class, background, promiscuity, sexual conduct or past history of the survivor. Rape robs a woman control over her own sexuality and autonomy.

Similar to these two verdicts by the Delhi HC and the Punjab and Haryana HC, 38 years back, the verdict in Mathura’s rape case focused on `passive submission’ where the Supreme Court stated that, “As pointed out earlier, no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false. It is further clear that the averments on the part of the girl that she had been shouting loudly for help are also a tissue of lies. On these two points the learned Sessions Judge and the High Court also hold the same view. In coming to the conclusion that the consent of the girl was a case of “passive submission”, the High Court mainly relied on the circumstance that at the relevant time the girl was in the police station where she would feel helpless in the presence of the two appellants who were persons in authority and whose advances she could hardly repel all by herself and inferred that her submission to the act of sexual intercourse must be regarded as the result of fear and, therefore, as no consent in the eye of law. This reasoning suffers from two errors”. And the Court clarified that the girl never cried and made no attempt to resist and that the onus is on prosecution to prove each ingredient of the offence.

The open letter addressed to the Chief Justice of India dated September 16, 1979[25]immediately thereafter then by the four prominent legal luminaries lodged strong protest and appealed for rehearing the matter in the interest of protection of justice, constitutional values and human rights of millions of Mathuras in the country’ while challengingthe colonial and the male dominated notion of what may constitute the element of consent, and the burden of proof, for rape’. The letter clarified that “There is a clear difference in law, and common sense, between ‘submission’ and ‘consent’. Consent involves submission; but the converse is not necessarily true. Nor is absence of resistance necessarily indicative of consent. It appears from the facts as stated by the Court and its holdings that there was submission on the part of Mathura. But where was the finding on the crucial element of consent?” It was further added “We also find it surprising that the Supreme Court should have only focused on the third component of Section 375 of the Indian Penal Code, which applies when rape is committed with the woman’s consent, when “her consent has been obtained by putting her in fear of death or of hurt”. But the second component of Section 375 is when rape occurs without her consent. There is a clear difference in law, and common sense, between ‘submission’ and ‘consent’. Consent involves submission; but the converse is not necessarily true. Nor is absence of resistance necessarily indicative of consent”.

However, contrary to the above view expressed in the open letter, in the Farooqui’sjudgment, the court shifted the burden of proof on woman where onus is laid on the survivor that she has to clearly communicate No’ in case she is notconsenting to the sexual interaction. The misogynistic and sexist court endorsed and promoted the idea thatNo’ may means a `Yes’. The Court clearly failed to recognize the fact of cultural differences in the understanding of sexual consent, emotional and sexual differences between the comprehension of the prosecutrix and the accused and the fact that a power relationship exists between the prosecutrix and the accused. The reason being that the prosecutrix believed that the accused was the key contact who could help her contacting the persons she required to interact in Gorakhpur for her research work. The Court with no reference to gender relations wrongly assumed that the prosecutrix when in the house of the accused at night in the absence of his wife or the presence of his friends and colleagues is in a comfortable position to accept or to deny to initiate sexual interaction.

The misogynist court casually and callously used the sexist Bollywood narrativesto examine the concept of consent[26]. The court stated that the “Instances of woman behavior are not unknown that a feeble ‘no’ may mean a ‘yes’.  If the parties are strangers, the same theory may not be applied…But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts.  In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.” Firstly, the court could not visualize the situation that a lettered man’ who may have met the woman (who is a foreigner) several times earlier and offered to help her in research, when asking for sexual favour, such situation cannot be deemed asrelationship between the equals’. Secondly, the court used the women’s education as a weapon to demean her while narrowly interpreting the parameters of consent. Thirdly, the past conduct of the victim was raised here while morally demeaning the woman as was done in the Mathura’s case where the Learned Judge hold that as Mathura was habituated to sexual intercourse. Fourthly, the constitutional court can in no way become a vehicle to promote senseless Bollywood idea about sexuality and masculinity or its own subjective notions or moral values. The court is bound to follow the rule of law and the law is very clear on rape and consent in such situations. Fifthly, inspired by the TV soap operas by portraying educated women as vamps’ andliberal women as `available’, the courts cannot absolve men’s role in committing the crime.

The court noted, “The history of intimacy and the unabashed liking/attraction of the prosecutrix towards the appellant may have given an impression to the appellant of consent”. The court further in para 74 noted that “the relationship extended beyond a normal friendship or a relationship between a guide and a researcher. According to her own version, physical contact with the appellant in the nature of a kiss or a hug was being accepted by the prosecutrix without any protest. In fact, on one occasion, while the prosecutrix was in the company of the appellant and his wife and the wife of the appellant had been moving from one room to another, the prosecutrix and the appellant both had taken a bold step of kissing each other. True it is that such past conduct will definitely not amount to consent for what happened in the night of 28.03.2015, if at all it had happened, as for every sexual act, everytime, consent is a must. The consent does not merely mean hesitation or reluctance or a “No” to any sexual advances but has to be an affirmative one in clear terms”. The law clearly held that the past physical intimacy or relationship has no bearing on the trial and that the accused cannot raise the past sexual history or victim shaming or blaming during the trial, yet, court negated this aspect as evident from the text of the judgement. Past physical intimacy and relationship was referred now and then by the court to favour the accused. With such masculine rhetoricthat is contrary to law and established legal principles that shames the victim and burden her with the onus to make her `No’ hear, it is questionable if such courts can provide justice in the cases relating to martial rape, violence in live-in relationships, other violence against women cases or similar such gender sensitive issues.

Though the court in Farooqui’s case found the statement of prosecutrix to be of sterling quality yet it created a distinct categories and class of survivors such as prosecutrix in the case as an educated woman’for whom the standards of positive denial is deemed higher. According to the court, it is the woman's character (her being conservative or modern, educated or illiterate) and not the man's failure to respect aNo’ carries weight in deciding a rape conviction. It further went on to create a distinct category of intellectually/academically proficient parties who are persons of letters and are not unexposed to various ways and systems of the world’<a href="#_edn27" name="_ednref27">[27]</a> where a feebleno’ would not always means a denial. Moreover, the court upheld that the accused, a man of letters’ known to survivor and suffering from bipolar disease is unable to comprehend her response because presumably herno’ was feeble. The focus thus ironically shifted from what woman said to what the man understood.  The new concept of feeble’ consent was introduced without distinguishing between or elaborating upon the degree of consent as to what constitutefeeble’ consent or what is meant by strong’ or resounding resistance and if such subjective parameter is sufficient enough for the purpose of law to determine the guilt of the accused. The verdict goes on using the education as a tool to protects men who “assume consent” of women who areeducated’ or not “conservative”.

The verdict concludes that the victim is not deserving of justice because the accused has failed to hear her ‘No’ (despite clear evidence of her repeatedly communicating the same to him). While the law clearly states that absence of physical resistance will not imply consent, the verdict suggests that non-conservative’ andintellectual’ women must not only communicate their lack of consent but also bear the burden of making sure the man understands that when she says no’ she really meansno’. And when a categorical no’ is not considered sufficient to communicate lack of consent, is it only signs of brutality and physical injury which must be accepted as “proof” that the woman did not consent. This effectively opens the door for acquittal in all rape cases where the victim has not also been severely physically injured while sayingNo’. The court fails to comprehend a simple aspect that No’ meansNo’.

The biased patriarchal court placed a disproportionate burden on a woman to clearly assert and display real, loud, not feeble’, not reluctant or not hesitant disinclination in a sexual interaction but it never, in any manner,raised the question as to why this burden should not be put on a man to clarify, to understand, to hear, to ask, to respect and not to assume consent on the part of a woman. The male dominated court never asked the man to be clear, to be certain and to assure about his belief and understanding of a woman’s verbal and non-verbal communications. The prejudiced court went on to explain that “the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant… At what point of time, during the act, did she not give the consent for the same, thus, remains unknown and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.” The court therefore wrongly invented the concept of clear communication between the accused and the victim without recognizing the situations where a drunk or an insane man who force himself upon the victim despite of her categorical denial who may not be held guilty presumably because he fails to comprehend her No’ because he is drunk or is not in mental state to hear herNo’.  Doesn’t that imply that the court is setting a precedent that in all cases where men are drunk or insane and are not in position to hear `No’, it would be presumed that all such men should not be held guilty of committing rape?

The inherent masculinecourt also created a new category of `assumed consent’ while re-inscribing male subjectivity and reinforced male privilege and presumed that a male can recklessly disrespect and disregard a woman’s dignity while forcing himself upon her. The Court hence invented a new mechanism while protecting the male fraternity and upholding the male chauvinismwhile preserving the fragile masculinity.This is evident by the fact that the androcentric court never questioned the male accused action to respect the woman or understand her willingness or consent. Rather, the sexist court put the entire burden on a woman to express her consent and unwillingness to participate in the action of rape.Instead of focusing on what a woman said the court based its reasoning on what the man understood. The court while acknowledging that the law defines consent as “affirmative consent”, sets aside this understanding and coined the principle of “affirmative denial” for “intellectually/academically proficient” and non-conservative women.

There are other flaws such as the judgment gave considerable importance to whether a person with a bi-polar condition can comprehend lack of consent, despite the fact that the defence produced no medical evidence to show that the accused was diagnosed with such medical condition, nor argued that this condition can impair comprehension.Elements like mens rea hold no significanceas per this verdict. Giving the benefit of doubt to the accused on the ground of lack of cognitive perception to understand the communication in the circumstances seems to be a far stretch even by norms of progressive reform-oriented criminal jurisprudence.The High Court allowed the use of alternate plea. Before the trial court, the filmmaker on being accused, responded by saying that the incident didn’t occur at all and he was wrongly accused. It must be highlighted that throughout the trial, the defence had maintained and led evidence to show that no sexual act took place at all on that day and that the complainant was not truthful.However, the prosecutrixproduces the legal and valid proofs to prove him guilty in forms of emails that she exchanged with him in which she expressed her displeasure to which appellant replied by apologies. This proves the fact that the alleged act did took place and that the accused in order to save his skin had fabricated his plea before the trial court. The accused then tried to plead that he was unaware of the fact that the prosecutrix had given her consent under fear which is in absolute contradiction to the stand he tookearlier. Legally, a person can either contest or concur with the arguments made by the other party but cannot do both. Giving the liberty to the accused to utilize two contradictory stands, is questionable and erroneous.  The court also disregards the fact that the complainant in this case was not cross-examined on her description of rape, or whether her ‘No’ was misunderstood as a ‘Yes’, and neither did the accused ever stated that he mistakenly assumed consent.

The verdict sets a dangerous precedent at both the both the legal as well as social front. It is bound to have ramifications in other cases too. Legally, it opens the door for every rape accused to claim that he had mistakenly read the woman’s No’ asYes’ and weakens the principle laid down in the 2013 amendment in the rape law that nothing less than clear Yes’ on part of the woman can count as consent; and that the mere absence ofNo’ does not mean “Yes”. The judgement has diluted the definition of consent. It puts an unfair burden on the victim-complainant – whereby she must not only prove she did not consent, but also that her lack of consent was not misunderstood as consent by the accused. Moreover, the verdict reaffirmed the entrenched cultural practice of ignoring a woman’s No’ and deliberately assuming that it is aYes’. “It sends out a message that the responsibility for understanding and respecting a `No’ does not lie with men; rather that the onus is on women to make sure that her “No” is understood. It sends out a message that even if a woman fears for her life, she must ensure that she sustained physical injuries so that her violation is recognised as rape.  It sends out a message that even when a woman has categorically communicated lack of consent, the Judiciary is free to interpret it with its own sets of assumptions of how women actually behave. It sends out a message that a woman who asserts her sexual autonomy will be disregarded by both the perpetrator as well as the legal system and that men are entitled to deliberately misread consent when none exists”[28].

As Mathura rape case brought shame to Indian judiciary then, the Farooqui’s verdict as wells the one pronounced by the Punjab and Haryana High Court brought disgrace to not only the legal system but also negated the struggle of the women’s movement to reform the patriarchal misogynist insensitive rape law. Such mindset turns the courtroom into a graveyard of a progressive laws where by twisting and manipulating the law, the persistent embedded patriarchy made mockery of the object and intent of the concept of the gender justice. The Mathura rape case has stirred the conscience of nation then. Could Farooqui’s judgement shake the integrity of the country when in 21st century the court is bringing in new defence to protect accused men rather than upholding justice to the victim?Farooqui’s decision negated the object and intent of changes made in the rape law and definition of sexual consent post Mathura as well as post Nirbhaya. Farooqui’s verdict as well as the order in the Jindal University rape case like Mathura’s decision are rigid and fixed in the conservative legal framework which portrays women victims as liars, who enjoyed being raped and therefore have not resisted and consented in one or the other way to the sexual assault. The courts in such cases fail to see that rape is not normal. That rape is not a trivial matter. Such decisions restrict the understanding to gender just laws and need to be countered.

Gender Justice: Struggling to Find the Way

Sadly, despite of protests, struggles, writings and active interchange of dialogues nothing much has changed over past 38 years. Through such precedents attempts have been made to normalize violence against women and trivialize serious offences such as rape. Stringent laws, fast track courts, efficient legal system, which were demanded after every rape case being highlighted in the media could not transform the situation unless such regressive mindset is challenged. Millions of Mathuras, Rameeza Bees, SoniSoris, Manoramas, have been raped day in and day out in every nook and corner of the country because of the impunity that empowers the culprit that he will not be harmed, because somewhere in his mind he has this idea that the male fraternity who occupy the higher rungs of police and judiciary will never act to harm him whatever crime he may commit against women, that the common notion of male brotherhood, of male chauvinism will protect him. The courts made by men, dominated by men, for men, will protect men and only promote the abashing male world view.Though the world moved ahead yet the mindset of men in the authority position in India remained stuck into the Victorian ideology and found new ways to protect their male counterparts while overlooking justice and negating the gains made in the field of reform of rape laws. The feminist jurisprudence and understanding of rape law and consent from gender perspective is shattered by the Farooqui’s decision in multiple manner. The situation reflects that the embedded patriarchy and the entrenched prejudice and bias regulates women’s access to justice. This must also be understood in the context of the overt and covert backlash against women who attempt to claim their citizenship rights, whether in terms of access to public spaces, education, the right to redressal, equal opportunities at the workplace, or to exercise their choice in marriage.This ongoing politics of backlash against women in law, society and polity call for introspection about how to make gender equality a reality.

Advocate Dr Shalu Nigam is a practicing lawyer. She has been engaged with research and activism on gender law and governance issues for decades and has written several articles and books. She may be contacted at shalu_nigam@rediffmail.com

[1] 1979 AIR 185, 1979 SCR (1) 810

[2] Criminal Appeal 607-608 of 2017 and 609-610 of 2017 decided on May 5, 2017

[3]Vikas Garg v State of Haryana Cr M. No. 23962 of 2017 in Cr. A. No. S2396SB of 2017 Punjab and Haryana HC

[4] Criminal Appeal No. 944 of 2016 decided on 25.9.2017

[5] Criminal Law Amendment Act of 1983

[6] State of Karnataka v. Krishnappa, (2000) 4 SCC 75

[7] (1996) 2 SCC 384

[8] (1983) 3 SCC 217,

[9] (2004) 1 SCC 421

[10] Pratap Misra v State of Orissa 1977 (3) SCC 41 State of Maharashtra v V Vasanth Madhav Deva 1989 Cri LJ 2004,Jayanthi Rani Panda v State of WB 1984 Cr LJ 202

[11] State v Umesh, Cri Rev Petition 266 of 2014 decided on 21st July 2015, Also Parihar Rohit (2013) Rajasthan HC Makes Rapist Marry Victim in Jail, India Today December 26 http://indiatoday.intoday.in/story/rajasthan-high-court-rape-accused-marriage-victim-jail/1/333095.html

[12] Vijay Sood V State of HP Decided on April 27, 2009 Also Jesudasan Dennis S (2016) HC Advises Rape Convict to Go For Mediation, the Hindu April 3, http://www.thehindu.com/news/cities/chennai/hc-advises-rape-convict-to-go-for-mediation/article7348312.ece?ref=relatedNews

[13] Kunal Mandiyala v State of Maharashtra Cri WP 1787 of 2016 Bombay High Court

[14] Rohit Tiwari v State Cr App. 928/2015 Delhi High Court

[15] Anant v State of Maharashtra Cri Appeal 449 of 2013 Bombay High Court,

[16] Mohit Nagar v State Cri MC 2454/2016 Delhi High Court, ManteshwarHanumantraoKantimani v State of Maharashtra Cr App 1419 of 2016 Bombay High Court

[17] Thapa Vijay Jung (1995) Justice of Gender Bias, India Today, December 31, http://indiatoday.intoday.in/story/bhanwari-devi-rape-case-verdict-branded-as-epitome-of-gender-bias-in-judiciary/1/289732.html  Also Thapa Vijay Jung (1995) A Shocking Acquittal India Today, December 15 http://indiatoday.intoday.in/story/womens-group-shaken-after-jaipur-court-dismisses-bhanwari-devi-rape-case-and-clears-accused/1/289707.html

[18]Nigam Shalu (2014) Violence Protest and Change: A Socio-legal Analysis of Extraordinary Mobilization after 2012 Delhi Gang Rape Case, International Journal of Gender and Women Studies, 2 (2) 197-221

[19] Criminal Amendment Act 2013 Act no. 13 of 2013

[20]VashistLatika (2017) The term of Consent: on the Faroouqi Verdict, The Hindu, October 4

[21] Criminal Appeal 607-608 of 2017 and 609-610 of 2017 decided on May 5, 2017

[22] State of HP v Asha Ram (2005) 13 SCC 766

[23] Nigam Shalu (2017) Fighting for Justice in Patriarchal Courts, Countercurrent, August 30, http://www.countercurrents.org/2017/08/30/fighting-for-justice-in-the-patriarchal-courts/

[24] Supra

[25] Upendra Baxi, VasudhaDhagamwar, Raghunath Kelkar and Lotika Sarkar (1979) An Open Letter to the Chief Justice of India, September 16, 1979 http://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf

[26] The Bollywood is guided by the senseless notion that a woman’s No’ meansYes’ as evident in number of movies and songs where such idea is wrongly promoted and reiterated without using any rational commonsense logic. So instead of infusing the rational logic that No’ meansNo’ (as also shown in one of the recent movie titled Pink’) the court went on to reiterate the stereotype that feebleNo’ implies `Yes’. The court instead on putting ban on such irrelevant meaningless notions is now becoming a vehicle to promote such sexist stereotypes which is unexpected from a constitutional court.

[27] Para 77 of MohdFarooqui v State (govt of NCT of Delhi) Criminal Appeal No. 944 of 2016 decided on 25.9.2017

[28] EPW (2017) Feminists Say `No’ to recent Rape Judgements and There is Nothing Feeble About it: A Statement by several women’s organizations on the two pronouncements on rape. October 2, Available at http://www.epw.in/engage/article/feminists-say-no-recent-rape-judgements

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One Comment

  1. Harasankar Adhikari says:

    Historically, we see that the social value of women has been determined in terms of sexual object almost in every society. It is the most matter of conflict of interest of male and female. We see that In many cases the women of varied ages us it as a tool of benefits. And conditional consent to sexual relation is one. It becomes a method of sexual exploitation when they fail to fulfill their promise after the act. The law and order authority takes it as granted to punish the male counterpart for breaking of a pledge.
    Theoretically, the consent to sexual relation “is an act in which one person alters the normative relations in which other stand with respect to what they may do”. Therefore, it is their rights, duties, obligations, privileges, and the like. It can transform a harmful action to a nonharmful action. It is sufficient to legitimize interaction for mutual benefit. A person could choose to interact with others in a way that benefits them yet is to his own detriment, so long as the choice is clearly voluntary. But if people typically consent only to those interactions that will improve their expected welfare and if people typically make fairly good judgments about such matters, then consensual interactions will leave both parties better off than they otherwise would be. The voluntary co-operation may explain in terms of an ethics of autonomy which also has two dimensions- positive and negative. Sexual relations are legitimate if female’s consent is to endorse the positive dimension of autonomy, the notion that people should be permitted to seek emotional intimacy and sexual fulfillment with willing partners. But sometimes for some material gains the women break the ethics and they think about their own value and respect. First self use as sex object would be left to avoid violence. So there is need of amendment of related laws and at the same time, there is also need of self-rectification to stop from sexual harassment and gender equity and justice.

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