Mahmood Farooqui verdict: This decision drives Indian rape statute back by four decades
The Delhi High Court's judgment vindicating Mahmood Farooqui has brought disparate perspectives up in the lawful group on the dim line between sexual consent of a lady and rape. The judgment by Justice Ashutosh Kumar holds that in the cutting edge world where balance is the "trendy expression" and where the two men and ladies are "initiators" of sexual acts, assent ought not to be insignificant delay or hesitance, but rather a reasonable and unambiguous "no". To put it plainly, there is no space for a weak "no”. Justice Kumar gave the “benefit of doubt” to Farooqui on the ground that he had no aim to rape her and it was vague that she had declined assent. The court noticed that since both Farooqui and the lady are "people of letters", practically zero protection and a weak refusal cannot be considered a real refusal.
The judgment makes another resistance for the attacker, which does not exist in law. There is a twofold assumption – no intention of the goal to rape (by the accused) and non-correspondence by the lady regardless of an unmistakable 'no' from her. The judgment has turned the meaning of assent on its head. What was intended to ensure the lady has been made into a protection for the attacker. The judgment is hazardous and will permit no conviction for rape by any means. The decision is wrong on a few legitimate grounds. Right off the bat, the high court enabled an alternate plea to be included by the defense that is very conflicting to the initial plea. The alternative plea is permitted and can be included at a later stage. Farooqui at first argued at a trial court that the act which he is being blamed for, did not occur by any means, that is, whatever the charges are against him they are totally devised. One can either challenge the claim of the adversary party or agree with it. Nobody can do both, in various petitions.
It is correlated to allude to the Justice Verma Committee report, on whose suggestion, the 2013 Amendment to Criminal Law was made. Explanation 2, under Section 375 of the Indian Penal Code, was embedded on the proposal of the advisory group. This proposal was made on the premise of the Canadian rape law. Under the Canadian law, the accused cannot make a subjective contention that he trusted that there was assent; rather he needs to demonstrate that he took sensible measures to guarantee that there was unequivocal assent for the particular sexual act. The judgment of the court, in this manner, is a corner to corner inverse to the letter and the soul of the law exemplified under Explanation 2 of Section 375, as is comprehended by analyzing the Canadian law, since that was the wellspring of the revision in Indian law.
It can be effortlessly reasoned this is perhaps the most backward judgment, in an assault case, by an Indian court, after the infamous judgment in Tuka Ram versus State of Maharashtra, famously known as Mathura assault case. This decision drives Indian rape statute back by four decades. It can be hopefully trusted that this decision will be overruled by the Supreme Court.
The essential rule of criminal law is that the advantage of uncertainty is given to the accused and unless the evidence is passed, sensible uncertainty the individual blamed for a wrongdoing is qualified for an acquittal. About rape, the Supreme Court, by a method for a few judgments, has given an uncommon status to the declaration of a casualty of rape by holding that the uncorroborated declaration of "Indian women" is sufficient proof for conviction. The reasons ascribed by the SC for inferring that "Indian women" are probably not going to lie about a rape are laid out in Bharwada Bhoginbhai Hirjibhai versus the State of Gujarat, it was held that In the Indian setting refusal to follow up on the declaration of a casualty of rape without substantiation when in doubt, is making an already difficult situation even worse. We should not be impressed us by the approach made in the western world which has its own social milieu, its own particular social more(s), its own particular lenient esteems and its own code of life.
Author: Rahul Singh
College: Amity University, Lucknow
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