29/08/2016 10:13 PM IST | Updated 30/08/2016 9:26 PM IST

Why The Backlash Against the Mahmood Farooqui Judgment is Manipulative And Dangerous

Women are being lectured about what kind of rape is real and what kind is a minor indiscretion.

Hemera Technologies

The past month has seen a storm of writing on the Mahmood Farooqui rape conviction. For those not in the know, Mahmood Farooqui, famed writer, artist, Dastango and co-director of the film Peepli Live, was accused of raping an American Fulbright scholar from Columbia University when she was in India for her PhD research. He was sentenced to 7 years imprisonment, the minimum punishment under law.

The pieces in support suggest that they were only written because the authors' friends and acquaintances were urging them to take a stand to prove their feminist credentials. Otherwise, they would have silently and stoically let the law take its course. Mona Das wrote a piece called "Mahmood Farooqui Case: May the Lynch Mob Please Disperse", in which she is at pains to point out that while she has been following Dastangoi long before it became fashionable (of course), Farooqui is not her friend. She bases her entire article "on a cursory reading of the reporting on the case" and proceeds, with a strange and twisted logic, to direct her ire at the complainant's lawyer, Ms. Vrinda Grover. Perhaps she feels hesitant to write against a complainant in such horribly feminist times; after all there is a "lynch mob" to fear. She conflates the prosecution (lawyers for the Delhi Police) with the victim's counsel (Ms. Grover) and attributes arguments reportedly made by the prosecution lawyers to Ms. Grover. She questions why the prosecution made reference to the Nirbhaya case, when the fact is it is referred to only in the context of the victim's own statement that thoughts of that case raced through her mind as she was being raped. Unless Das is suggesting that the victim edit her statement in order to sound politically correct, it is unclear what she expected Grover to do. She then questions Ms. Grover's argument in pressing for life sentence, that inter-alia, the victim's trauma was exacerbated as she was a foreign national fighting a criminal case in an alien country. Leave aside that in a criminal trial, the role of the victim's counsel is only to supplement the State-led prosecution and that it would have been an unusual dereliction of duty for Grover to have asked for less punishment than sought by the Delhi Police, the fact remains that for anyone to be in a foreign country, trying to establish rape charges against an influential and well-connected person would exacerbate the hardship that a victim goes through. How is this remarkable?

Subsequent pieces appeared to have at least read the judgment, though did not make similar efforts to establish their connection or lack thereof with the accused or his family, efforts that would have been appreciated. What they lacked however, was any understanding of the law. Manisha Sethi for instance, in her recent article "Why the Mahmood Farooqui Judgment is Deeply Flawed", tries to argue that for a conviction to be rightful, the judicial standard of "beyond reasonable doubt" must mean "beyond any possible doubt", an interpretation that is neither correct nor desirable. She states that the prosecution's case must the the only one possible. The correct standard is that it must be the only one possible on a logical and reasonable construction of events, not an improbable or fanciful one.

The judgment is remarkably well-reasoned, and displays a degree of progressiveness rarely seen in rape jurisprudence.

Sethi then goes on to analyse the judgment and the evidence. At the outset, let me state that the judgment is remarkably well-reasoned, and displays a degree of progressiveness rarely seen in rape jurisprudence. It steers clear of the kind of assumptions and stereotypes one has come to expect in conversations around such cases, particularly about Western women, alcohol consumption, bipolar difficulties and extra-marital associations. It should serve as precedent in terms of judicial language on rape, making clear as it does that the wrong of rape is not in taking away a woman's honour or her marital prospects, but that it robs a woman of control over her own sexuality, and that the essence of rape is the absence of consent--intelligent, positive concurrence.

This progressive understanding is in stark contrast to that displayed by Farooqui's supporters, including Sethi, who have done their best to paint the victim as someone who was madly in love with Farooqui and was angry about being rejected by him. Whether this was the reason she filed a complaint, or she just enjoys the criminal litigation process, we do not know. Even the email exchange that is crucial to the evidence has been distorted. The emails as reproduced from the judgment state:


I tried calling you, but was unable to get through. I want to talk with you about what happened the other night. I like you a lot. You know that. I consider you a good friend and I respect you but what happened the other night wasn't right. I know you were in a very difficult space and you are having some issues right now, but Saturday you really went too far. You kept asking me if you could suck me and I knew you were drunk and sad and things were going awful. I knew that this wasn't going to help things and I told you many times I didn't want to. But you did become forceful. I went along, because I did not want things to escalate but it was not what I wanted. I was just afraid that something bad would happen if I didn't. This is new for me. I completely own my sexuality and I consider you a good friend. I like you. I am attracted to you but it really made me feel bad when this happened. I haven't known what to say to you since then. I wasn't sure if I would say anything. In the end I consented but it was because of pressure and your own force physically on me. I did not want things to go bad. I have only decided to tell you how I feel for your own well-being. I am afraid that if you don't realise that this is unacceptable, you may try this on another woman when you are drunk and she may not be so understanding. I do love you and wish you well. I want the best for you whatever that is. I also need you to know doing what you did the other night was unacceptable. I hope this doesn't affect our friendship, but am willing to deal with the repercussions if it does."

To which Farooqui replied "My deepest apologies..." which is explained away by the defense argument that he didn't bother to read the email before apologising.

You wouldn't know any of this if you read Sethi's piece, which does not reproduce the email but only describes it, as one that "professes "love", "respect", and "attraction" for Farooqui" and that "she "went along" and "in the end consented" to avoid escalation of the situation. She expresses her disbelief that forced oral sex continued for only 3 minutes, and whether the language in the email was "natural" for someone who has been raped. According to Sethi, this email doesn't mention anything resembling rape, and the only mention of rape comes in two weeks later, when the complainant writes "You hurt me. I said no. I said no many times. You didn't listen. You pinned my arms. You pulled my underwear down". Her argument is that as per the first email, the complainant "consented, but not out of free will" and this somehow, is not rape. Further, that the complaint stated that after resisting, she feigned an orgasm to end the ordeal, and going by this, Farooqui had no reason to believe that the consent was not freely given. Not only is there absolutely no basis for such a presumption, it is peculiar that while the defense maintains that the act never happened at all, Sethi is engaging in all kinds of mental contortions to show it did happen, but was consensual.

She speaks with something that actually resembles nostalgia when she says that non-penetrative sexual abuse by a known person is at the opposite end of the spectrum from brutal gang-rape by strangers...

What this displays, beyond a poor argumentative strategy, is an even poorer commitment to the idea of consent, especially by people who are otherwise so particular to espouse feminist causes. There was a recent piece by Farooqui's former colleague Natasha Badhwar, where she "interviewed" lawyer Flavia Agnes with leading, suggestive questions and opinions, such as: "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 judgment?". In this, Ms. Agnes informed us that "gender justice cannot be divorced from human rights" implying that too much gender justice is a bad thing, and that forced oral sex by a friend in his drawing room cannot be compared with forced penile penetration by a stranger simply on the principle that a rape is a rape. She speaks with something that actually resembles nostalgia when she says that non-penetrative sexual abuse by a known person is at the opposite end of the spectrum from brutal gang-rape by strangers, and would earlier have come within the scope of molestation where the maximum punishment was two years.

For decades, feminists have fought for the legal definition of rape to be expanded to include oral, anal, digital rape and rape by use of objects, and now we are told it isn't rape enough? That a mouth is more benign than a penis, that sexual assault in a drawing room is much better than on a street, that stranger-rape is more rape than acquaintance-rape, that if you haven't been sufficiently brutalised, then your consent to an explicitly sexual act doesn't really matter?

In a 2013 piece on, Ms. Agnes said that the Tarun Tejpal case is most emphatically one of rape, and that it puts "people like us" on trial, testing our commitment to feminist principles and equality before the law, even when the accused may be known to us. In a 1992 piece in EPW, she wrote about the need to change the definition of rape beyond penile-vaginal penetration, and to have a strict minimum punishment. In January 2013 in another EPW article titled "No Shortcuts on Rape" she emphasised the need to recognise that the majority of rapes occur in the home, by people known to the victim. What has changed? There appears to be a complex calculation of whose side to take in which case that could do with some elucidation.

Manisha Sethi is at least more consistent in her views (if only for people like Tejpal and Farooqui) as demonstrated both in in her recent article referred to above, and a previous one "Confronting Certainties" written by her in 2014 in collaboration with Anusha Rizvi, Farooqui's wife. That limited consistency is about the best one can say about the pieces. The 2014 article began by saying that it will examine the new rape law in light of the Tejpal and Khurshid Anwar cases, then concludes with the admonishment that discussion must move beyond one or two high profile cases. It castigated commentators for slamming Tejpal's actions on social media, accusing them of inciting the "lynch mob" that attacked Shoma Chaudhury's house. It argued that Tejpal shoving his fingers up a junior colleague's vagina against her will is much nicer than a policeman doing it with stones to a prisoner in his custody. Most ironically, it raged against media hysteria and selective outrage, seen here only by Farooqui's supporters.

Sethi's recent article was much worse, and not only for its distortion of emails or understanding of consent. In its initial form, the article concluded with a need to examine carceral feminism and its unspoken alliance with a punitive state. Its updated form contains a postscript that says while there is a critique of the new law and of carceral feminism to be made, it calls for another reflection, unburdened by the specifics of this case. At least she is responsive to feedback that laws can't be reviewed just because someone in her social circle got convicted. What is shocking is this misappropriation of serious, complex arguments for individual cases. Yes, there is a need to examine the politics and practices of incarceration, and what it means for a feminist movement to rely so heavily on it. Yes, we need to look at reformation where possible. But there is also a need for the law to recognise and acknowledge certain rights and wrongs, and criminal law is an important way of doing that. The law has enormous capacity to reform human behaviour, that needs to be intelligently and fairly used. The panic that has set in even where only the minimum punishment is awarded, obscures the fact that for reformation to work, many other factors need to be in place, which simply aren't. No one so far has been able to provide a workable alternative to our current criminal justice system beyond improving it to the best extent possible.

But now these attempts have moved beyond "Farooqui is innocent" to "the law is bad" and "feminism is the new sexism" and it is time to speak out.

I have never met either Farooqui or the victim. I have no desire to "lynch" anyone, whether guilty or innocent. I can understand Farooqui's family, friends, lawyers doing their best to protect him both legally and socially, which is why I have stayed silent thus far. But now these attempts have moved beyond "Farooqui is innocent" to "the law is bad" and "feminism is the new sexism" and therefore it is time to speak out. Today we have, astonishingly, reached at a point where staunch liberals, activists and feminists have decided that it's okay to lecture women on what kind of rape is real and what kind is a minor indiscretion, to pass judgment on the different degrees of trauma suffered when there is a penis as opposed to a finger as opposed to a mouth as opposed to an iron rod. It's suddenly okay to argue that a woman can't be attracted to someone and still not want sexual intimacy with them on a given day, to serve up for public debate the amount of sex, the amount of coercion and the amount of consent that was used. This is very dangerous.

The women's movement has fought hard and made some significant gains, be it changes in legal definitions, punishments, recognition of offences, or more sensitive procedures. These changes are still fragile, requiring time and sustained sensitisation to fully take root, and are still only a fraction of what needs to be done. But the regressive, tribalist backlash in support of people like Tejpal and Farooqui threatens to undo all these gains, and set us back decades in terms of even a basic framework of women's rights. We need to step up, call it out, and call a rape a rape, no matter who is involved.