​The short-lived social media outrage over the
acquittal of the Peepli Live director Mahmood Farooqui by the Delhi High Court in the 2015 rape case
was focussed entirely on Justice Ashutosh Kumar's observation that "a feeble no may
mean a yes".
The 82-page HC judgment came under criticism for attempting to narrow the legal interpretation of ‘consent'. In doing so, it has robbed the survivor of her right to consent and to her own free will.
The initial 101-page judgment by Special Fast Track Court sentencing Farooqui to seven years rigorous imprisonment was based on hard facts and transparently weighed the worth of every documentary evidence and testimony on the scale of written law.
The HC, however, laid thrust not on the fact that the survivor was sexually assaulted despite having denied consent but on Farooqui's fresh claim that he didn't know about her fears. By upholding this line of argument, the HC has effectively transferred to the accused the survivor's right to consent.
At least three observations by HC stand to negatively impact the notion of ‘consent'.
The first is the "analysis of consent by taking into account the gender binary". "There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. Woman is by and large non-verbal," the judgment reads while allowing that "in today's world with equality being the buzzword, such may not be the situation."
Second on the list is the HC's qualitative differentiation between a feeble and a strong denial of consent and effective communication of this to the accused.
"The survivor feigned pleasure in the hope of ending the ordeal. The accused therefore had no way of knowing about the element of fear in her mind... Instances of woman behaviour are not unknown that a feeble ‘no' may mean a ‘yes'," the judgment reads.
The Delhi HC has declared that "feeble hesitation cannot be read as withholding of consent".
This is in contrast with the Indian Penal Code which states that ‘consent' can be communicated through words, gestures or any form, verbal or non-verbal and it's very nature implies that it can be withdrawn at any stage. Thirdly, the judgement rules that while in the case of a ‘conservative person', mere reluctance would mean negation of consent, in case of persons of letter, a ‘feeble no' may not mean denial of consent. It is hard to deny that rape is, first and foremost, an act of dominance involving assertion of power and a manipulation of a woman's body against her will. It is dangerous when the judiciary strays away from this rhetoric.
acquittal of the Peepli Live director Mahmood Farooqui by the Delhi High Court in the 2015 rape case
was focussed entirely on Justice Ashutosh Kumar's observation that "a feeble no may
mean a yes".
The 82-page HC judgment came under criticism for attempting to narrow the legal interpretation of ‘consent'. In doing so, it has robbed the survivor of her right to consent and to her own free will.
The initial 101-page judgment by Special Fast Track Court sentencing Farooqui to seven years rigorous imprisonment was based on hard facts and transparently weighed the worth of every documentary evidence and testimony on the scale of written law.
The HC, however, laid thrust not on the fact that the survivor was sexually assaulted despite having denied consent but on Farooqui's fresh claim that he didn't know about her fears. By upholding this line of argument, the HC has effectively transferred to the accused the survivor's right to consent.
At least three observations by HC stand to negatively impact the notion of ‘consent'.
The first is the "analysis of consent by taking into account the gender binary". "There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. Woman is by and large non-verbal," the judgment reads while allowing that "in today's world with equality being the buzzword, such may not be the situation."
Second on the list is the HC's qualitative differentiation between a feeble and a strong denial of consent and effective communication of this to the accused.
"The survivor feigned pleasure in the hope of ending the ordeal. The accused therefore had no way of knowing about the element of fear in her mind... Instances of woman behaviour are not unknown that a feeble ‘no' may mean a ‘yes'," the judgment reads.
The Delhi HC has declared that "feeble hesitation cannot be read as withholding of consent".
This is in contrast with the Indian Penal Code which states that ‘consent' can be communicated through words, gestures or any form, verbal or non-verbal and it's very nature implies that it can be withdrawn at any stage. Thirdly, the judgement rules that while in the case of a ‘conservative person', mere reluctance would mean negation of consent, in case of persons of letter, a ‘feeble no' may not mean denial of consent. It is hard to deny that rape is, first and foremost, an act of dominance involving assertion of power and a manipulation of a woman's body against her will. It is dangerous when the judiciary strays away from this rhetoric.
