In a controversial judgement recently, the Delhi high court acquitted Peepli Live director Mahmood Farooqui, who was accused of committing an offence of rape. One of the grounds for acquittal was that the negation of consent was not clear enough under the circumstances and that the complainant merely resisted “feebly”. This has sparked a debate on the whether the act of saying no in a hesitant manner is insufficient to constitute consent. The Case of Mahmood Farooqi vs State of Delhi was decided on 25 September, 2017, it brought about a lot a controversy due to the unreasonably of its Judgement. In the Plethora of rape cases pending before the Indian Judiciary Farooqi case has been emerged to be one of the controversial one. It clearly depicts the failed attempt of Judiciary to clearly interpret the Section 375 of IPC which talks about Rape. With time Judiciary has tried to bring out new concepts and new interpretation to the clauses of rape. But in changing the dynamics the Judiciary has fall short of a reasonable interpretation of any Statute. Farooqi case is one such which depicts the lack of reasonableness in interpreting a statute.
Rape and Consent
The law traditionally has defined the crime of forcible rape to be an act of sexual intercourse accomplished by a man with a woman not his wife, by force and against her will. The central substantive element of rape is non-consent. Rape is not a unique crime requiring non-consent. But it is unique in the definition given to consent. As it has been understood, the consent standard denies female autonomy; indeed, it even denies that women are capable of making decisions about sex, let alone articulating them. Yet consent, if properly understood, has the potential to give women greater power in sexual relations and to expand our understandings of the crime of rape. That is, perhaps, why so many efforts have been made to define the concept.
Unfortunately, the legal community has not yet developed a principled standard of effective non-consent in rape. Instead, courts and legislatures have tried to manipulate evidence and other rules around an undefined issue, usually guided by questionable assumptions about rape complainants and rapists they have lost sight of and failed to protect interests served by criminalization of rape
Questionable assumptions of rape assert that women who wear provocative clothes, smoke, go out after dark or travel alone not only invite rape but desire intercourse and, therefore, consent is presumed. It is the combination of this presumption with judicial interpretation of the non-consent element that is problematic.
The interpretation by the legal system has failed to fulfill the real intent which was intended to be served by criminalizing rape. Much of this failure can be attributed to the legal rules that determine how a charge of rape is tried and punished. As has been shown that how courts take into account the past sexual history and that, in my view, leads to great injustice. Thus such tendency by the courts needs to be changed so as to properly decide the rape cases, and to eradicate the arbitrary ad unreasonable procedures and practices applied by the courts.
Consent as depicted by Indian Judiciary
Section 90 of the Indian Penal Code defines consent as free and intelligent consent, given without fear or fraud, and with a full understanding of the act to which the consent is being given. Whether the consent was freely and intelligently given, is a fact, which is not proved by the woman’s outward behavior and conduct alone. But in deciding rape cases, the Courts seems to rely upon that alone and do not seem to look for any further proof of her consent. Another fundamental problem is that the law provides no clear, working definition of rape. This rather conspicuous gap in the law of rape presents substantial questions of fair warning for the men, which the law not so handily resolves by imposing the burden of warning them on women.
The history of women’s Consent through judicial decisions traces how a judicial precedent represses the violence that underlines. Judicial interpretations have structured the women’s consent by declaring that;
- Women’s consent and her character are made interdependent.
- Women’s consent is presumed if she is unchaste.
- Her bad character and her consent are regarded as proved if she shows no outward signs of struggle resistance screams or absence of injury,
- Immediate abortion amounts to no consent
Myth of Consent in Farooqi case
Consent in the present case has been provided with a very different interpretation as given in previous Judicial Pronouncements. The most controversial part of the interpretation is that under what circumstances any women is said to have consented. The present case emphasized upon the point that since the victim had accepted to have oral sex by pretending to have orgasm, she has clearly consented to the Act and thus not amounted to Rape. The contention that she was traumatized because of the strength of the Accused cannot itself be considered strong because even if she was scared she must have resisted to the Act of the accused. Though the Court could be seen to be reasonable on giving emphasis on this point but this also gives rise to a parallel issue that non-resistance to the Act of the accused amounts to giving consent. Through this case the courts have given an affirmative answer to the above-mentioned issue which would ultimately result in a deadlock upon the interpretation of Section 375 IPC. It is clearly unreasonable to consider that not resisting or pretending to show orgasm amounts to consent. It can lead to a situation where even if a disabled woman was raped who is not able to communicate the resistance verbally or non-verbally would be considered a no rape situation if the court accepts the principle propounded in this case. This would indeed be the greatest irony in the Justice system of the country which talks about women empowerment.
- Interpretation of this nature would definitely be Strong deadlock towards the formation of legislation regarding Marital Rape which one of the most debatable future legislation.
- The change brought by the Nirbhaya Case would be of no use if there are discrepancies in the basic interpretation of Rape.
 Laiq Singh v State of UP, AIR 1970 SC 658
 Tukaram v State of Maharashtra, AIR 1979 SC185
About the Author
Rakesh Kumar Sahu, A 2nd Year BA.LLB Student from National University for Study and Research in Law, Ranchi from Dhanbad Jharkhand. I am tech Savvy kinda Guy honing his skills in Advocacy with future goal of developing new perspectives of law and technology. Constitution is what I preach with an objective of finding out new possibilities in the field of Law. Other ways I am a Snooker Enthusiast, a Book lover.