'Feeble no' may signal consent says Indian court after overturning rape conviction
Charges against Farooqui who was sentenced to seven years in prison in 2016 after being found guilty of raping a Columbia University graduate student have been dropped. Photo: Hindustan Times
(Web Desk) – Debate over the meaning of consent swept away the conviction of Mahmood Farooqui, the co-director of Bollywood hit ‘Peepli Live’, as he was acquitted in India’s high-profile rape case.
Arguing that a ‘feeble no’ could still ‘signal willingness’ on the part of an alleged victim, the charges against Farooqui who was sentenced to seven years in prison in 2016 after being found guilty of raping a Columbia University graduate student, have been dropped, reported CNN.
While challenging Delhi High Court’s ruling in 2016, Farooqui’s lawyers in their appeal had called attention to the lack of evidence that Farooqui was alone with the victim in his house on the night of the alleged incident. They also made an alternative argument, claiming that ‘if at all, such an occurrence had taken place’ it was with the alleged victim s consent.
Ashutosh Kumar, the Delhi High Court Judge who threw out the conviction this week said that the accused deserved the ‘benefit of the doubt’ on all points.
While saying that it was not clear whether the incident took place as outlined by the alleged victim, Kumar added: "It is not unknown that during such acts, one of the partners may be a little less willing or, it can be said unwilling but where there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner."
While the ruling has revived a debate over the meaning of consent in rape cases all across the country, Karuna Nundy, a Supreme Court lawyer behind the reforming of India’s sexual assault laws after the rape case of Jyoti Singh Pandey has said that the court has elided over the legal definition of consent that was brought into law in 2013.
"It completely erodes the definition of consent," said Jhuma Sen, a professor at Jindal Global Law School. "The court seems to be creating this additional defense that the accused must have been made aware by the victim," she added.
According to court documents, the woman had met Farooqui in 2014, after she arrived in India to research her PhD. She alleged that the assault at the center of the case occurred during a visit to Farooqui s home in March 2015.
Vrinda Grover, the lawyer appearing for the victim told CNN that the high court acquittal order is wrong on facts and in law, and so, they plan to appeal the decision in the Supreme Court.
