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 That year, an amendment repealed Section 155(4) of the Indian Evidence Act, through which the defence could bring evidence of the “general immoral character” of the survivor.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.
Section 375 provides for a single standard of consent for all cases of rape—an “unequivocal voluntary agreement” by the woman to participate in the specific sexual act. Willingness to engage in the sexual act may be communicated by the woman through words, gestures or any form of verbal or non-verbal means. The definition also expressly states that a lack of resistance cannot be regarded as consent.
It is in this context that the implications of the high court’s ruling in the Farooqui case must be highlighted. Farooqui was one of the first cases where a high court was called upon to interpret the amended Section 375. The court had an opportunity to establish a normative framework, especially in the context of what consent implies. It could have been guided by the recommendations of the Justice Verma Committee—by recognising rape to be a violation of a woman’s right to sexual autonomy and bodily integrity. Alternatively, if the court found that the evidence created a reasonable doubt about whether the offence was committed, it could have acquitted Farooqui on those grounds. Instead, the court resorted to stereotypes and articulated a standard of consent that is starkly different from the standard stated in the IPC, the Verma committee recommendations, and decades of judicial precedent.
The prosecution argued that the accused had subjected the survivor to oral sex, an act to which she had not consented. In her testimony, the survivor stated that she had said “no” multiple times before and during the act. After Farooqui continued to performed oral sex on her despite her refusal, the survivor testified, she began to fear for her life, and feigned an orgasm so he would stop. On the other hand, the defence argued in the trial court that the act had not in fact taken place. In the high court, it took the plea that even if the act had occurred, it was with the consent of the survivor, and hence did not amount to rape.
To assess whether the act was without the survivor’s consent, the court relied on her testimony. It noted that she was a “sterling witness.” If the court believed her testimony and found it to be impeccable, as per existing law, the court was bound to convict. However, it fell back on stereotypes to second-guess the survivor’s testimony. It stated that the axiom “yes is yes and no is no” does not have universal acceptance. It noted that “instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes.’”
The judgment went on to state that different parameters or standards of consent apply in instances of rape by strangers and by acquaintances. This reflects another stereotype surrounding rape adjudication—that the act of rape when committed by acquaintances is less serious than when it is committed by strangers. The court further ruled that different standards of consent apply if one of the parties is a “conservative person,” or if the parties are “persons of letters and are intellectually/academically proficient” and have had sexual contact in the past. In such cases, the court said that “it would be really difficult to decipher whether little or no resistance and a feeble ‘no’ was actually denial of consent.” Despite the definition of consent in Section 375, the court seems to require the survivor to actively resist the act—even beyond, according to the survivor’s testimony, repeatedly saying “no,” and “pulling her underwear up” when Farooqui was disrobing her. Before the judicial and legislative reform of rape adjudication, the judiciary in some cases had required a denial of consent to be expressed through violent resistance that led to signs of injuries upon the survivor. It is unclear whether the judgment advocates a similar standard.
The court also curiously noted that Section 375 requires the prosecution to prove that not only should the survivor not have consented, but that the accused should have realised that the survivor had not consented. The wording of Section 375 starkly contradicts this interpretation. As per the provision, the crux of the offence of rape is the lack of consent of the survivor. It does not depend on the perception of the accused. This has been the standard since 1860, when the IPC was enacted, and has been reiterated by multiple court decisions. It is for the court to determine whether the survivor was consenting—not for the accused to argue that he did not know that she was not consenting. The accused being mistaken about consent is not a defence to the offence of rape, and the court is legally wrong in interpreting the section to allow it to be one.
In order to support its interpretation that the perception of the accused is a relevant consideration in rape cases, the court also relies on Section 90 of the IPC, which discusses the validity of any consent given under fear or misconception of a fact. The reliance on this provision is erroneous for two reasons. First, Section 90 deals solely with misconceptions of facts in the mind of the survivor, not the offender. The section notes that consent otherwise given will be invalidated if it is proved that such consent was given due to misconception of fact, and if the accused knew that the survivor was labouring under such misconception. The section is generally invoked in cases where there is some deception that causes the woman in question to consent. This was not a contention in the Farooqui case.
Secondly, even if one were to concede that the court is correct in relying on Section 90, a basic rule of interpretation of law is that if a term is defined in a particular section, then only that definition is to be used for the purposes of the section. Thus, the definition of consent as defined in Section 375 would be applicable to the interpretation of that section to determine whether an act was conducted with the consent of the woman. A different, broader definition of the term in another part of the legislation—such as Section 90—or other legislations would not be applicable for the interpretation of that particular section. With consent defined already in Section 375—and defined only from the perspective of the survivor—there is no need to resort to Section 90.
Ultimately, the high court ruled that: it is doubtful that the incident ever took place; even if it did, it is doubtful whether the sexual act was without the survivor’s consent; and if it was without her consent, it is doubtful whether the accused discerned that the survivor was not consenting. However, the court’s determination of the survivor’s consent was based on erroneous legal reasoning; and the perception of the accused regarding the survivor’s consent is not a consideration as per the law.
Hence, the legal accuracy of the judgment boiled down to whether the court believed that the incident took place at all. While addressing this issue, the court questioned whether the incident could have taken place in a short time span as suggested by the survivor’s testimony. However, it also noted that the aspects regarding the timing “pale into insignificance” if the accused did not know that the sexual act was without the survivor’s consent. It is not clear whether the court determines that the prosecution proved beyond reasonable doubt that the incident took place or not. If on the basis of the evidence adduced, the court laboured a doubt about the timeline of the survivor’s testimony, it should have acquitted Farooqui straightaway. That could have been said to be based on a sound legal basis, although one may disagree on the interpretation of facts. However, by articulating irrelevant “standards of consent” and ruling that the perception of the accused on the survivor’s consent is relevant in rape adjudication, the judgment causes immense damage to rape law, and to the advances made—both in law and public discourse—after the 2012 Delhi gang rape.
The reliance on stereotypes and rape myths has a detrimental impact on rape adjudication, where, for their testimony to be treated as credible and sufficient for a conviction, a specific type of behaviour is expected of rape survivors before, during, and after the act. The stereotypes and behaviours that have been considered relevant during rape law adjudication in India have included: the past sexual conduct of the survivor; the relationship between the accused and the survivor; whether she screamed during the incident; whether she physically resisted; the time gap between the incident and registering of the FIR; and whether the survivor informed her family, friends, or even passers-by right after the incident. Only an “ideal” rape survivor—as determined by myths about how women do (or should) act during sexual assault—was given the protection of the law.
It took nearly three decades of law reform to minimise the impact of these stereotypes and myths on rape adjudication, which culminated in the Justice Verma Committee report and the 2013 amendments. Not only did the high court take into consideration several stereotypes expressly rejected by the amendments, it has set an incorrect interpretation of consent as a judicial precedent. The court’s decision has grave implications for all of rape law and ultimately, for women’s right to bodily integrity and sexual autonomy. One hopes that the Supreme Court will step in at the earliest to correct errors of the Delhi High Court in the Farooqui case.
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.