July 26, 2020
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The Cure For ‘Moral’ Panic

In the liberal public sphere, Mahmood Farooqui’s trial is not yet over. Concerns over ‘carceral feminism’ and ‘flawed’ trials reveal our insecurities.

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The Cure For ‘Moral’ Panic
Illustration by Saahil
The Cure For ‘Moral’ Panic

The conviction of Mahmood Farooqui on charges of rape has triggered responses that merit serious ref­lection—if only, because the people who have res­ponded in the print and online media, especially, are persons with credibility and a track record of working/writing on matters of law, women’s rights, human rights and public interest. 

The facts of the case in brief: Farooqui was accused of sexually assaulting a Fulbright scholar from the US at his house on March 28, 2015. The form that the assault took was forced oral sex, which is covered under Section 375 (d) of the Indian Penal Code: “Rape—A man is said to commit ‘rape’ if he (d) applies his mouth to the vagina, anus or urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions [of which two are relevant to the present purposes] Firstly—against her will. Secondly—without her consent.” 

There was delay on the part of the complainant in lodging an FIR. In the intervening period there are e-mails on record exchanged between her, Farooqui and Farooqui’s wife Anusha Rizvi. Her first e-mail to Farooqui is dated March 30, two days after the incident. He replies with one line: “My deepest apologies.” She then sends him a second e-mail on April 12, two weeks after the incident, by which time she is very angry and makes a direct, hard hitting accusation, ending with the following words: “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, it is your sin that I carry forward. It is your sin that I have to overcome. You disgust me.” (p 120 of the judgement).  This mail is read by Anusha Rizvi who replies as Farooqui is in rehab by this time: “I am deeply disturbed by your e-mail. What you have described is an ordeal. I cannot imagine how you have dealt with it so far. Needless to say that I stand with you. If you require any help of any nature including legal, I will assist. This is completely unacceptable behaviour, especially for me since it happened under my roof.”   To this the complainant replies that Anusha must not take res­ponsibility for this and she must not attribute the ass­ault to Farooqui’s bipolar condition and that it was a question of power. Anusha replies again: “As I said before, his brothers and I will completely support you in whatever you wish to do about it...I understand how angry you must be and therefore misread my categorical position on such matters.” (pp 121-122). 

Are we saying we should do away with prison ­sentences altogether? Not a bad idea, but for that, there has to be a change in the law, is it not?

There is a clear statement of absence of consent by the complainant and an apology on e-mail by Farooqui and letters from Anusha Rizvi assuring all support in any action the complainant might contemplate. There is also personal communication between the complainant and several people—Danish, her friend as well as Farooqui’s, her academic advisors on the Fulbright programme and her family, among others. In June 2015, about six-seven weeks after the incident, the complainant returned to India and lodged a complaint of rape against Farooqui. The trial commenced in August 2015 and the judgement of the trial court pronounced Farooqui guilty of the offence of rape on July 30, 2016. He was sentenced to seven years in prison.

The question of consent does not arise in this case, because the defense denied the occurrence of sexual contact altogether. The critical question remaining was of corroboration and delay in registering a complaint.  It has been a long and painful struggle to lead courts to the point where corroboration is not mandatory in a case of sexual assault. Finally, the courts have reached a point where it is accepted that “it is well settled law that in a case of rape, the sole testimony of the victim is sufficient to establish the guilt of the accused and no corroboration is required.” (para 68.9, State Govt of NCT of Delhi v. Mahmood Farooqui).  Especially in cases of sexual ass­ault, delay could be condoned, taking into consideration the specific circumstances of the case.

The complainant and the accused both had access to the best legal representation—lawyers of high calibre with a track record of dedicated work in the profession, especially as criminal lawyers; Vrinda Grover for the complainant and Nitya Ramakrishnan for the accused. There is no reason to believe, therefore, that the accused did not have a fair opportunity to defend his case. 

Should our argument be that we push for prompt ­action in all cases or­ that, since we do not have it in other cases, we shouldn’t have it in this one.

On the basis of the evidence and arguments presented, the court found: “The evidence of the prosecutrix is of sterling quality. It is consistent and credible. Her evidence has been corroborated in all material particulars by PW10, PW11 as well as by independent records comprising emails, SMSs, WhatsApp communications as well as CDRs. Her demeanour shows her to be an honest and truthful witness. There is no improvement, embellishments and exaggerations in her testimony. The minor and immaterial discrepancies have no bearing on this case. I find no reason to disbelieve the prosecutrix that she was raped by the accused in the time frame as described.” The quantum of sentence is set out in the penal code and the arguments on quantum are usually led by the state, represented by the additional public prosecutor.  This is criminal procedure as it exists and the one that must be followed till such time as it is on the statute books. 

There is a criminal law in place. There is a trial. In a recent article pointing out the ‘flaws’ in the Farooqui judgement, academician and activist Manisha Sethi alleges the “vilification of the wife” even while she asks, “Is it within the realm of the possible that all this (the rape)—as stated by the complainant herself—could have taken place in the given time period?” As a point of fact, however, that is evident from the judgement. Anusha Rizvi (Farooqui’s wife) was not a witness in the trial. Her e-mails to the complainant were documents admitted by the defence and there is no record in the judgement of the defence contesting their veracity. So, the opposite seems to be the case. It is the complainant who is under attack from Sethi. Thankfully, there was competent defence and a competent prosecution. Guilt was established beyond reasonable doubt leading to a conviction by a trial court. The accused has the right of appeal. However, in the meantime, once guilt is established in a court of law, a prison sentence follows. 

The debate on ‘carceral feminism’—practices that privilege resolution of women’s issues (especially violence against women) through juridical means and incarceration—is in fact part of the larger debate on carcerality and its operations, especially under neo-liberalism. It is an important debate, no doubt, but it is odd that Sethi raises this as an aside with reference to Farooqui. Are we saying we should do away with prison sentences altogether? Not a bad idea, since retribution and deterrence are flawed principles. But for that, there has to be a change in the law, is it not? Till such change occurs, do we stop complaints from being lodged and cases from coming up for trial? Oddly enough, I do not remember the issue of carceral feminism being raised in the context of the sentencing of the accused in the Nirbhaya case, where not liberty, but life was in dire threat for the acc­used, one actually dying in prison, and legal representation was grossly inadequate. But India is a society built on graded privilege. And in these high-profile cases, we see the unexpected habitations of this privilege.  

We are in strange and trying times, where a news channel talk show has become the measure of good reporting “to the nation that wants to know”, both in the media and in the public domain generally. This is particularly tragic. There is an atmosphere of moral panic in which “feminists” and “feminism” is tossed around with a steady stream of reports from the courtroom, outside which gets embellished—even as it circulates—hearsay, in legalese. How do any of us know what any lawyer in court is actually saying by way of stray comments and to what specific effect/purpose in relation to the case except what is reported to us by those who claim to have heard it? What we do know of what has transpired is what is presented in the judgement as the arguments by lawyers on both sides and this is on record in fair detail for anyone who wishes to read it? 

I am surprised therefore by the interview of Flavia Agnes by Natasha Badhwar in Outlook. On the question of the expanded definition of rape and the harshness of the minimum sentence of seven years under the new law, Agnes is quoted as saying “I believe that human rights of the accused cannot be violated in a criminal trial. Gender justice cannot be div­orced from human rights.” Flavia is not alone in holding this view.  The first debates on shifting the burden of proof in cases of rape in the late 1970s and early 1980s in the context of Rameeza Bee and Mathura triggered exactly this question.  The point, however, is: What is the relevance of this observation in a question about the Mahmood Farooqui case? There was a criminal complaint, the case went through trial and resulted in a conviction. Where is the conflict between human rights of the accused and gender justice? 

The second question and response is even more telling. Badhwar asks: “In the Farooqui rape case, the defence had put forth many arguments that showed how improbable the alleged act of rape was and how there were several inconsistencies and gaps in the prosecution’s case. These have not been taken into consideration by the judge. What is your reading of the judgement?” Agnes responds with reference to POCSO (irrelevant here) and ends with: “If the inconsistencies and gaps have not been taken into consideration, it would be a major lacuna, which needs to be set right at the appeal stage.” Clearly, she consented to the interview without reading the judgement (if she had, she would have had a definitive answer, without recourse to an ‘if’ and a ‘would’) or Badhwar has distorted her response. Either way, this interview tells us nothing about the case, except that Badhwar is drumming up support for someone who is “wrongly accused of rape”—her next question. 

The end of the interview is even more damning. Trauma, hurt and harm are subjective experiences. There is a broad gradation of crime based on severity in the law, which may or may not match the experience of harm by victim-survivors. It is shocking, to put it mildly, to hear Flavia Agnes (of all people) say “I do not endorse the view that whether it is oral sex by a friend in his drawing room or a gruesome gang-rape where weapons are used causing grievous injury, the same yardstick must be used for assessing the harm or trauma caused by inv­oking the premise that a rape is a rape.” This was not about “oral sex” in a friend’s drawing room. It was about sexual assault under section 375 (d) IPC. How did Flavia forget that even the defence did not lead evidence on the question of consent? There was a blanket denial of sexual contact. So where does the question of oral sex come into the picture? On a more general level, is she saying that in graded sexual assault, behaviour at the top of the ladder of severity—with intestines and ent­rails torn out—is rape and it automatically folds into consensual sex as you travel down the ladder? Graded privilege and graded ass­ault amounting only to sex in this case! We have also heard murmurs against the speed of this trial. Should our argument be that we must push for prompt action in all cases or should it be that since we do not have prompt action in other cases, we should not have it in this one?  This is a complex debate, but nowhere is it fair to suggest that if other victims cannot secure justice, this victim should not—the gravity of the crime of rape cannot be wished away. We have fought this trend in cases of domestic violence already, where for decades, the only ‘real’ victim of domestic violence was a dead one. Has Flavia forgotten that?

In the ultimate analysis, this is not really a case of ‘feminists’ doing this or that.  Nor is it clear what the gradations of feminism are here and what its locations are.  Rape is not a mere feminist concern. It is a human rights issue that concerns us all.  It is completely irrelevant that Farooqui is a scholar/poet/film maker of repute or that he belonged to a reputed family, or is married to someone who is a committed writer/journalist. What is material is that there is an accusation of rape. Irrespective of what the public outcry is, and how powerful or visible his supporters, how vocal or feeble or fractured the feminist voice, a trial must take place (as it did). And if found guilty, he will be sentenced to a prison term till such time that we are able to abolish prison systems altogether and eschew carcerality. But we cannot demand security for women, define the fine print of what bodily integrity means drawing on rec­orded feminist archives of sexual violence, and then disable any legal redress on its derogation.

(Kalpana Kannabiran is professor & director, Council for Social Development, Hyderabad)

Slide Show

The Mahmood Farooqui case is one of the first cases where forced oral sex, a crime for which there was no named offence earlier, has been recognised as rape. The case has kickstarted big debates among feminists, ­academicians, activists and lawyers and others regarding the severity of the punishment given to Farooqui, the circumstantial evidence etc. The case has been closely dissected in the media after the trial concluded.   

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