N R Mohanty
The Delhi High Court judgement on Monday acquitting Mohammad Farooqui, a well-known writer and film-maker, of rape charges has raised some questions about all the dramatis personae involved: the complainant, the accused and the judge himself.
Justice Ashutosh Kumar, the Delhi High Court, overturned the trial court judgement convicting Farooqui of the rape charges; Farooqi who had been awarded by the trial court the minimum punishment for such a conviction – seven years in Jail – walked out free after the HC order. It is to be seen if the Supreme Court upholds or nullifies the Delhi High Court’s interpretation that has set off a big debate in the country.
On the face of it, it ought to have been an open-and-shut case. A woman complaining of a sexual encounter without her consent, as per the strict law in vogue today, should have ordinarily sealed the fate of the accused. It did so in the trial court; but a battery of high-profile lawyers, like Kapil Sibal, who appeared for the accused, clearly changed the language of discourse – from a factual to the philosophical domain – when a ‘no’ actually became a ‘yes’ or when a feeble ‘no’ became an unspoken ‘invitation to action’. Which other message would travel to a man when the woman signals neither ‘affirmative consent’ nor ‘positive denial’, was the question posed.
The trial court had based its judgement on fact and awarded the conviction; the high court gave the benefit of doubt to the accused on the philosophical interpretation of the sequence of events presented by the complainant herself.
The high court took notice of the email – the first written communication after the forced sexual encounter – that the American research scholar, the complainant, wrote to Farooqui, the alleged rapist. The incident had happened on 28th March, 2015. The email was dated 30th March.
The woman wrote: “I want to talk to you what happened the other night. I like you a lot. You know that I consider you a good friend and I respect you, but what happened the other night wasn’t right. I know you were in a very difficult space and you are having some issues right now, but Saturday you really went too far. You kept asking me if you could suck me and I knew you were drunk and sad and things were going awful. I knew that this wasn’t going to help things and I told you many times I didn’t want to. But you did become forceful. I went along, because I did not want things to escalate, but it was not that I wanted.”
She went on to say: “I completely own my sexuality and I consider you a good friend. I like you, I am attracted to you, but it really made me feel bad when this happened. I haven’t known what to say to you since then. I wasn’t sure if I would say anything…. I have only decided to tell you how I feel for your own well being. I am afraid that if you don’t realise that this is unacceptable, you may try this on another woman when you are drunk and she will not be so understanding.”
The research scholar’s mail to Farooqui was interpreted as an affectionate advice, not so much of a complaint by the lawyers of the accused, ignoring the fact that in many cultures, afflicted women are not given to hyperboles; their positions are often understated. But lawyers representing Farooqui quoted the last paragraph of the same mail saying it was a giveaway: “I do love you and wish you well. I want the best for you, whatever that is, but I also need you to know doing what you did the other night is unacceptable.” And the final sentence: “I hope this does not affect our friendship, but am willing to deal with the repercussions if it does.”
“A person who has been violated against her wishes would not be so understanding as to confront the appellant with such simple reproach”, Kapil Sibal argued.
He insisted that the woman was confused — that she said that she did not like what Farooqui did but she wished him well and wanted to remain friends. She did not want Farooqui to terminate friendship with her after the incident.
The court accepted the argument of Farooqui’s lawyers – that because the woman was split in her emotions towards Farooqui, she could not communicate precisely her lack of consent when Farooqui egged her on for the sexual act, that “… even if the act was not with her consent, she actually communicated something which was taken as consent by the applicant… the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant. If that were not so, the prosecutrix would not have told the appellant that he had gone too far on that night.” Justice Ashutosh Kumar fell for this argument and said that he was giving the accused the benefit of doubt.
But Justice Kumar virtually ignored the import of another mail the American scholar sent to Farooqui 12 days later; that was not a sober communication as the first one; it was trenchant one, full of expletives, and accusing Farooqui of ruining her life. “ XXXX for doing this. XXXX for taking away my confidence, XXX for making me leave India the country I love. XXXX for taking advantage of my kindness… You were supposed to be my friend. Instead you manipulated me. You hurt me. … You pinned my arms. You pulled my underwear down. In the past two weeks I have blamed myself. I have spent the last two weeks crying, processing. I thought about death… So, remember this, what you did that night wasn’t one night, what you did that night continues to affect me and my suffering, my pain. It’s on your hands; when I carry this forward in life….”
This evidence should have nailed the case. But Kapil Sibal argued that this change in the complainant’s attitude came about because the accused, after reading the woman’s 30th March mail, “realized the necessity of calling the prosecutrix and telling her that there never was any intimacy between him and her and that it shall never be and he did not want to continue any alliance with her.”
The lawyer of the accused argued that the complainant’s version changed after Farooqui decided not to continue the relationship with her. But then if that was the case, why did Farooqui apologise to the woman in the first place, soon after she wrote the 30th March email?
Just see the lame excuse advanced by Farooqui’s lawyers: “… the appellant (Farooqui) has admitted that the prosecutrix (the American woman) had sent him an email to which he had replied as “my sincerest apologies”. He has stated that it was written only after reading the first two lines of the email as the appellant was busy that morning and was constantly in communication with other artists and writers regarding his performance of ‘Dastangoi’. The first impression of the appellant after going through 2-3 lines of the email dated 30.03.2015 was that prosecutrix was upset because full attention was not given to her on the last night,” and that is why he wrote that apology note to the American lady.
Can there be a more facile argument than this?
But Justice Ashutosh Kumar refused to take into cognizance these later developments and based his judgement solely on the sequence of events on that fateful night, 28th March 2015: his conclusion was that the American scholar that night clearly did not do things, despite the fact that options were available to her, to convey the message clearly to the accused that she was unwilling to participate in the sexual act.
That raises important questions about the interpretation of the consent of a woman – a question which possibly the Supreme Court will have to finally answer.
Sangharsh India 