Dastaan-e-State v. Farooqui

In 2013, Ms. Flavia Agnes, feminist legal scholar and activist, in an Asian Age article (available here now) held a mirror to the society that broadly identifies itself as ‘progressive’ by questioning the complicity of silence and murmurs in the Tejpal case. Mr. Tejpal, a progressive ‘hero’, a courageous journalist was charged with ‘rape’ under the expanded definition of penetration in the Criminal Amendment Act 2013. What followed was a public scrutiny of the charges and the complainant claiming that the complaint was false, that the case was politically motivated to delegitimize the wonderful work he did, and a general disbelief that someone ‘like us’ could never be charged with a crime like rape. Standing at that critical juncture, where ‘one of us’ was charged with a crime that ‘people like us’ regularly condemn and call out, Ms. Agnes’ piece was poignant. She recounted that after the 2012 brutal Delhi bus rape case, followed by the historic Verma Committee Report when the law was amended to widen the definition of ‘rape’ to include insertion of not just penis but objects into body orifices, not just to vagina, but also anus, urethra and mouth (oral sex) and the stringent punishment that such acts carried, little did ‘people like us’ realize that one day it would come to bite us, bite people close to us, the people we respect. The litmus test in such cases was to adhere to our commitments to equality before the law and equal protection of law, and to stand by our feminist principles which never go amiss when the accused hails from a certain socio-economic class, like the Shakti Mills case or the 2012 Delhi gang rape and murder. This is the Tejpal Test for ‘people like us’—to continue upholding our feminist principles even when people like us are involved.

Enter 2016 and things haven’t changed much. Mahmood Farooqui, cultural icon of the progressives, famed for reviving the 16^th century lost art of oral Urdu storytelling, Dastangoi, writer and artist, co-director of Peepli Live, an Oscar-nominated film was accused of raping an American scholar last year who was visiting India for her doctoral research. The woman filed a complaint last year and on 30^th July 2016, the Special Fast Track Court, Saket delivered the judgment in Mahmood Farooqui v State. The ensuing weeks have witnessed a bitter battle reminiscent of Tejpal hailing or thrashing the judgment. Think pieces have been written responding to other think pieces and interviews of admired feminists have been taken to evoke the carefully constructed narrative of a progressive man (“one of us”) at the receiving end of a harsh rape law sentencing for a crime he did not commit. Multiple narratives have emerged including how cases like this force a carceral turn to feminism, how forced oral sex is not ‘real rape’ and therefore deserving of lesser quantum of punishment, how the rape accused is akin to the terror accused, and how for the sake of ‘nuance’ we must maintain ‘silence’ so a demand to call a rape a rape is akin to lynching. Any meaningful engagement with these narratives and detractions must involve a thorough interrogation of two debates at the meta level, namely the discussion surrounding ‘harsh rape laws’ and second, an interrogation of the judgment itself, which apart from one piece has been carefully avoided (or selectively done), which itself is an interesting observation to be made in this context.

On ‘Harsh Rape Laws’

A careful look at the new rape laws is essential here. A 23-year-old student was brutally gang-raped in a moving bus in Delhi in the winter of 2012 and was later left to die on the streets. She succumbed to her injuries and died after two weeks. This was followed by a massive public outrage on the streets ‘against a failure of governance to provide a safe and dignified environment for women of India’ who were constantly exposed to sexual violence. The government responded by setting up a committee, headed by retired Justice Verma to look into possible amendments of criminal law to provide for quicker trial and enhanced punishment for sexual assault. The Verma Committee after rigorous consultation with women’s groups and other stakeholders submitted a report with recommendations, some of which were incorporated in the Criminal Law Amendment 2013 which expanded the definition of rape, introduced some new offences and took away judicial discretion in minimum sentencing amongst other things. The Verma Committee had recommended that the definition of rape be expanded to include non-peno-vaginal penetration. Penile penetration into vagina, mouth, urethra and anus was incorporated to do away with the high premium courts put on peno-vaginal penetration to determine rape. The committee also noted that definition of rape should require the existence of ‘unequivocal and voluntary agreement’ as well as proof by the accused of steps taken to ascertain whether the complainant was consenting. The 2013 amendment incorporated the expanded definition of rape recommended by the Verma Committee and also introduced a definition of ‘consent’ as ‘unequivocal voluntary agreement’, when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The Criminal Law Amendment 2013 also took away judicial discretion in reducing punishment below the mandatory minimum of 7 years although there was no such suggestion from the Verma Committee.

For decades, women’s groups have campaigned to expand the definition of rape, include a definition of consent and to ensure that the victim could access the legal system without the threat of re-victimization. The 2013 amendments in this sense was a victory and a move into the right direction. The ‘harsh rape law’ myth ostensibly originating from a backlash phenomenon have however painted the picture of a draconian criminal law with only her words against the accused able to land the latter in jail. Another misconception is that the new rape laws shifted the burden of proof to the accused and that the accused has to prove that he is innocent. These myths are based on an incorrect understanding of criminal law jurisprudence and S. 376 of the Indian Penal Code read with S. 114 A of the Indian Evidence Act.

The Supreme Court has a settled jurisprudence that in rape, the complainant is to be treated as an injured witness and if her testimony is found to be credible, conviction can be based on her evidence without corroboration. The ‘sterling quality’ of the testimony of prosecutrix has been relied upon in cases that predates the 2013 amendment. Courts have noted time and again that unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused when her testimony inspires confidence and is found to be reliable. It has been held that seeking corroboration of her statement before relying upon the same, as a rule, amounts to adding insult to injury (State of Punjab v Gurmit Singh). The testimony of the prosecutrix is appreciated on the principle of probabilities just like any other testimony of a witness. The court is able to assess the credibility by scrutinizing a number of things e.g. if the prosecutrix gives vivid account of the entire episode of assault, or if she narrated the event to third parties after the occurrence of the incident (showing contemporaneous event) etc. Courts still look for corroboration and in practice, if no corroboration is available, the courts scrutinize her testimony with great care.

In 1983 the Indian Evidence Act was amended after the infamousMathura case and S. 114A was inserted into the law. Mathura, a tribal woman was raped by two policemen in police custody. The 1983 amendment created a presumption against the accused in certain cases i.e. cases under S. 376 (2) and provided that in such cases (custodial rape for example), once sexual intercourse was proved and the complainant had stated that it was consensual, the court would presume that it was without her consent. The presumption is also a rebuttable presumption. The accused is required to discharge the onus by proving that the act was with consent.  In all other cases of rape, the presumption against the accused and favoring the victim is non existent. The 2013 amendment has not altered this logic.

Courts have consistently viewed rape as an offence against chastity, virginity, marriageability and indirectly against property rights. The notion of penile penetration is based on the control men exercise over ‘their’ women (hence the marital rape exemption clause); penile penetration by other men violates this property rights. Consequently, when courts asked the question: what is the harm that rape caused, the response was couched in the language of shame, loss of virginity and hence loss of marriageability, mirroring the zinda lash metaphor for rape victims used by lawmakers. This also implied that the courts could not handle sexuality and a sexually assertive woman would be considered ‘unrapeable’ by the courts. Women’s groups fought tooth and nail to situate rape in the conversation on bodily integrity and sexual autonomy. Consequently, the Verma Committee borrowing from the United Nations Handbook and CEDAW noted that definition of rape should require the existence of ‘unequivocal and voluntary agreement’ as well as proof by the accused of steps taken to ascertain whether the complainant was consenting. The 2013 Amendment introduced a definition of consent as ‘unequivocal voluntary agreement’ when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.

Although amendments were made in rape laws successively with the watershed moment of the post Mathura 1983 amendment, there was no effort to systematically monitor the impact of these amendments in rape trials. When feminists started mapping the judicial trends in rape trials, it was revealed that courts (including the Supreme Court) routinely used notions of chastity, morality, sexuality to determine cases. False binaries were created where women were neatly categorized into good, virtuous and chaste woman deserving of protection and sexually assertive women who ‘must have consented’ to be violated. In the stage of sentencing, this ‘judicial discretion’ inscribed in Section 376 for reducing minimum sentence (seven years in non-aggravated cases and ten years in aggravated cases) by providing “adequate and special reasons”, was often based on irrelevant or extraneous consideration like age of the accused, the social status etc. A careful scrutiny of judgments delivered by the appellate courts reveal that not only is the judicial discretion unguided, but also internally inconsistent. This is compounded by the fact that in India unlike UK, USA or Australia there are no sentencing guidelines. The Malimath Committee (2003) as well as the Madhav Menon Committee (2007) advocated for statutory sentencing guidelines but experience from other jurisdictions show that extensive research is essential before sentencing guidelines can be formulated.  In the Verma Committee submissions, although some women’s groups made note of this aberration in sentencing policy, there was no prescription to do away with the discretion in S. 376. The Verma Committee too, while making important observations on life imprisonment and capital punishment, also did not make any recommendation to remove the discretion. The 2013 amendment however did do away with the weighing in of irrelevant factors while using discretion, presumably noting the farcical character of adequate and special reasons in the absence of clear sentencing guidelines.

The Judgment in State v Mahmood Farooqui

State v. Mahmood Farooqui is a remarkable piece of progressive judgment. An excellent summary of the judgment may be found here. The revolutionary aspect of the judgment is that it locates lack of consent in the ‘taking away’ of one’s control over sexuality. The Court noted that the prosecutrix was bitter against the accused for committing a sin and taking what was most precious to her, i.e. her control over her sexuality. This is a welcome and radical departure from the dominant discourse on rape with a centrality of ‘loss of honour’. The court reads the definition of consent (Explanation 2 to S. 375), into the emails of the survivor reiterating that she ‘used to own her sexuality’ and the perpetrator’s act took away the ownership from her. This is the post Nirbhaya moment in action.

The court noted that the 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 (Danish Hussain), PW11 (a woman friend) as well as by independent record comprising of emails, SMS, WhatsApp communications as well as CDRs (Call Detail Records). Her demeanor, the court noted showed her to be an honest and truthful witness. The court goes on to note that she had informed PW10 Danish that things were not right with her in the house of the accused and she needed to urgently speak with him as soon as she exited the house of the accused. As soon as she left and got into the taxi, she called PW10 and narrated him that the accused raped her. She also described the sexual assault to him. This in the reading of evidence, is a contemporaneous conduct that affords her credibility. The court notes the credible testimony of the prosecutrix and in keeping with rape law jurisprudence puts centrality to that credible testimony which was corroborated in material particulars. The judgment has a detailed discussion on the appreciation of evidence and findings where the court has in great detail discussed the credible testimony of the prosecutrix and noted that the same has been corroborated

However, the aftermath of the Farooqui judgment has thrown in a number of questions and debates especially on the issue of sentencing. In a recent interview on Outlook, Ms. Flavia Agnes drew a comparison between the 2012 Delhi gang rape case and the Farooqui case to argue that these two are located at the opposite end of our rape laws, ‘one an extremely brutal gang-rape and murder by strangers and the other, non-penetrative sexual abuse by a known person, which earlier would have come within the scope of molestation where the maximum punishment was two years.’ She goes on to say that— 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 is in part a reflection of another think piece on this issue which argued for grading of sexual assault in a vertical hierarchy, claiming ‘any sexual assault is a grave crime but every crime is not equally grave’. Ms. Agnes, on a similar vein while acknowledging that it is a feminist principle to support and demand justice for all victims of sexual assault, irrespective of the degree of bodily violation, argued that there needs to be a space where distinctions about the amount of coercion used, extent of physical injury and the nuances of age and ability of the victim are taken into account and spoken about.

It is extremely important to scrutinize these assertions. It is being argued that forced oral sex is less grave than penile sex and therefore deserving of lesser punishment. It has also been argued that rape by a known person is less grave than rape by a stranger, and that court ought to be able to objectively measure trauma caused by any form of rape and on that basis prescribe a sentence, and that taking away that discretion does extreme disservice to penal laws. The (false) distinction between oral sex and penile sex is based on moral considerations that put centrality on loss of honour in peno-vaginal rape. For years, penetration was interpreted as peno-vaginal one and courts awarded punishment on moral consideration of loss of virginity (and hence loss of marriageability), putting a high premium only on penile penetration. The women’s movement fought hard to expand the definition of rape to remove this moral yardstick to measure gravity in penile rape. It was on this consideration that the law was amended. To now say that oral sex is ‘less grave’ than penile sex, takes the gains of feminist legal movement several years backward.

Second, it is also being argued that there ought to be a distinction made between rape accompanied by physical injury and rape where the woman under the fear of possible violence ‘consents’ to sexual intercourse which is marked by an absence of physical injury. This is reminiscent of Mathura and other regressive decisions by the judiciary, where ‘lack of physical injury’ was read as ‘consent’. When consent has been obtained by putting the woman in fear of death (a circumstance recognized by S. 375 as rape), chances of physical injury are likely to be less or non-existent. Should the woman then resist enough to ensure that she suffers great physical injury so that everyone is satisfied that 7 years is not too harsh for forced oral sex? This is antithetical to any feminist engagement with law.

It needs reiterating here that even in the current sentencing regime, a ‘brutal’ (Nirbhaya like) rape and a rape unaccompanied by physical brutalities, as in the Farooqui case, are assessed differently. The former will invite a higher sentencing and will act as an aggravating circumstance when quantum of sentencing is measured. The minimum sentencing of 7 years has been around for a while and a lack of ‘grave physical injury’ is not a special circumstance. Rather, a grave physical injury would have been an additional aggravating factor.

Third, it is being argued that rape by a known person in his drawing room is less grave than rape by a stranger. This is prescriptive of women’s trauma and also denies the fact that 98% of rape in this country are by known people—by partners in intimate relationships, friends, relatives and acquaintances. Rape is also committed by husbands but a statutory blindness exists in the form of marital rape exemption.

Should then the trauma of the survivor play any role regarding punishment? To say that trauma of the survivor must have a role to play in deciding the quantum of punishment is dangerous because, first, trauma cannot be measured and therefore cannot be graded, second, trauma will vary from person to person and the lawmakers cannot prescribe the right level of trauma to award someone a higher or lower punishment. More dangerously, this leads to a lynch-mob policy being built into law. More often than not, we will then witness trauma of the society being imposed as trauma of the victim and have courts sit in judgment on the ‘collective consciousness of the society’. This is undesirable.

Should harm be then calculated to determine sentencing? It is a principle of criminal law that harm should be taken into account while awarding punishment. Should trauma be a part of calculating ‘harm’? The answer must definitely be a no. The trauma of a woman who is raped without a weapon is as grave as the trauma of a woman who is raped with a weapon. It could be different as well, but it could also be the same. There is no way to conclusively argue for any of these and that is why trauma should be kept outside the universe of calculating harm. Trauma cannot be and ought not be graded and it is best to shun moral consideration in sentencing policies. Moral hierarchies of rape i.e. ‘grave’ rape in case of a peno-vaginal penetration and ‘drawing room (‘less’) rape in case of forced oral sex by a known person should best be avoided, especially by progressives including feminists.

The debate on sentencing in the Farooqui case is compounded by the fact that there has been no dedicated work on studying sentencing policy in India and in the absence of which no sentencing guidelines have been formed. As a result, there is no clarity on how courts determine the quantum of punishment to be imposed. This is even more dangerous when one scrutinizes the discretionary role of the judges to award less than (or more than) the minimum sentence prescribed. For example, in a 1994 case (Raju v State of Karnataka), a young woman was raped by two accused in a lodge; the court reduced the punishment from the statutory minimum i.e. 7 years to 3 years having regard to the fact that ‘both the accused were young boys who could not have controlled their lust when the woman agreed to share a room’. In yet another case (T.K. Gopal v State of Karnataka), the Court noted that the ‘daughters of the accused had come of age and were soon to be married’, enhancing the sentence from 10 years to life was recalled. Court have constantly used irrelevant consideration like age of the accused, his social status or chastity, sexuality of the victim as ‘adequate and special reasons’. Equally disturbingly, courts have frequently not recorded any reason while reducing sentences below the minimum. High Courts in India have even considered mediation between parties in rape case even though rape is a non-compoundable offence (V. Mohan v State). These factors seemingly are the immediate reasons for deletion of discretion in sentencing in an offence under S. 375

Carceral Feminism

Instead of reading the judgment for what it is, a remarkable piece of progressive reading of rape law, several detractions, mostly couched in progressive language have surfaced. The most mischievous of these many detractions is raising the bogey of ‘carceral feminism’ to respond to the new law and the judgment. Manisha Sethi’s article concludes with a postscript on ‘carceral feminism’ where she signs off by underlining the elective affinity of criminal law with a punitive state. Carceral feminism broadly denotes the varieties of feminist theory and praxis that seeks to address women’s issues by juridical means and threats of incarceration. The state here is the enforcement apparatus of feminist goals. Carceral feminism as a point of critique emerged in the USA in the context of anti-trafficking campaigns that revealed a convergence of agendas and activities of the ‘carceral feminists’ with Christian evangelicals and neoconservative politicians that is, a commitment to carcerality, to use the criminal law apparatus to ‘abolish slavery’ in sex trafficking (Bernstein, 2007); invoking the criminal law in turn landed a disproportionate number of racialized and poor men and women behind bars. Feminists have also argued that a carceral turn to feminist mode of justice seeking invariably exceptionalizes sexual violence by placing it up higher on the ladder of criminality (Halley, 2008). It has been argued that these uneasy handshakes between feminists and the state has contributed to the increased power and growth of the prison industrial complex. Mass incarceration and immigrant detention centres in the USA for example have been associated with neoliberal economic structures. The effectiveness of the criminal justice system has been critically evaluated from time to time by American as well as Indian feminists. In the Indian context, for example, this resulted in a civil law for domestic violence, a demand to decriminalize sex work and a growing emphasis on building a more transparent and accountable state administration and justice delivery mechanism.

None of these demands are at odds with the use of a criminal law by a victim to get justice in a rape case. Sethi seems to suggest that a survivor’s decision to move the judicial apparatus to seek justice in a case registered under the penal laws amounts to some sort of perpetuation of carceral politics and therefore highly condemnable. This is a deliberate camouflaging of anti-feminism in the language and logic of anti-carceral feminism. Does Sethi also suggest that a law like Prevention of Atrocities Act (which incidentally prescribes death penalty as the maximum punishment) be scrapped because the victim will be using the apparatus of criminal law to seek justice? Is she suggesting a complete divorce of the state (and law) from feminist politics?

Carceral feminism has nothing to do with a survivor’s decision to approach the court. Arguably, if Farooqui and friends seek to minimize the intervention of criminal law, or alter sentencing policies, the right forum to do so is the legislature and not the court. One must also bear in mind that there is no dedicated and comprehensive study on incarceration rates (or the politics thereof) in rape cases in India to conclude that innocent men are being sacrificed at the altar of a prison industrial complex. Conviction rate in rape still remains abysmally low.

It is also important to respond to the restorative justice red herring here. Restorative justice is an immensely important approach to justice that focuses on the victims and the offenders along with the community. It is meant to ‘repair’ the harm as opposed to ‘punish’ the offender. The goal of all progressive societies should be to adopt a restorative justice framework. However, as studies in other jurisdictions have shown, such framework should consider a number of other factors for an effective justice delivery system, most importantly that restorative procedures are not viewed as a second class justice and ensuring that the voice of any party is not submerged in the process. Restorative procedure begins with the acknowledgement of harm and taking responsibility for it. It is impossible to expect ‘harm’ to be repaired without an express admission of guilt. In cases of sexual violence, it is also more difficult to initiate roundtable conversation between the perpetrator and the victim because of association of violence, trauma and injury.

The debates around Farooqui case are oddly reminiscent of the Tejpal case and perhaps we need to remind ourselves of the Tejpal Test now. The Tejpal Test for ‘people like us’, Ms. Flavia Agnes affirmed in 2013 was to continue upholding our feminist principles even when people like us are involved. We need to talk about how privilege and entitlements make violence normal in our own ‘circles’. Silence must not fall when the question is asked. If it is fine to engage when the accused in a bus driver or attendant, why is it ‘lynching’ when the accused is a dastango? What does it tell us of our class and caste privileges? Let us call rape by its rightful name please. 

Jhuma Sen is a lawyer and a professor of Law.

Also see: The Flavia Agnes interview - ‘Can’t Compare Brutal Gang-Rape With Forced Oral Sex’ and Kalpana Kannabiran's response