What is the issue?
- Recently, the Delhi High Court acquitted a person accused of rape charges.
- There are divergent views in this regard, between sexual consent of a woman and rape.
What is the case?
- Mahmood Farooqui was convicted of rape charges by a trial court.
- The case involves a 35-year-old foreign woman researcher in India.
- The Delhi High Court acquitted the accused giving him the benefit of doubt.
- The two grounds are i) he had no intention to rape her ii) it was unclear that she had refused consent.
- The court has held that the women's stance on consent should not be mere hesitation or reluctance, but a clear and unambiguous “no”.
What is the 2013 amendment?
- After the Nirbhaya rape case, in 2013, significant amendments were made to the rape law provisions in the Indian Penal Code.
- Among many, it included the definition of consent in rape cases and established an “affirmative model” of consent.
- Accordingly, consent is defined as an indisputable voluntary agreement by words, gestures or any form of verbal or non-verbal communication by a woman.
- It clearly specifies that absence of physical resistance would not by itself amount to consent.
- Clearly, the objective behind the incorporation of this definition is to make woman the subject of law.
- The amendments also introduced a clause which says that if the woman “is unable to communicate consent", the man would be said to have committed rape.
- It could be due to physical or mental infirmity, or not being given the space to communicate and be heard.
Why is the recent judgement flawed?
- The verdict seems to have completely negated the objective and intent of the definition of sexual consent in the 2013 amendment.
- The judgement has derived validity primarily from two presumptions -
- absence of intention to rape (by the accused).
- non-communication by the woman despite a clear 'no' from her.
- Clearly, as a disregard for the amendments, the verdict displaces the woman and reinstitutes the man as the subject of law.
- The court’s reasoning was not what the woman said, but what the man understood as her consent.
- The ground of "assumed consent" in the verdict seems to ignore woman’s voice or freedom in matters concerning her sexuality.
What is the larger implication?
- The Delhi High Court's verdict comes as a jolt to the evolving rape law jurisprudence in the country.
- The still prevalent socio-cultural stereotypes have defied the women sensitive logic and objective of earlier legal reforms.
- The country and the judiciary should wake up to women's concerns and rights, to establish gender equality in all spheres of freedom and justice.
Source: The Hindu
