Acquittal of Mahmood Farooqui

In what was considered a test case for the amendments brought to the rape law after the Nirbhaya gang rape in 2013, Mahmood Farooqui has been acquitted by the Delhi High Court on appeal of charges of raping a US research scholar. The judgement has attracted sharp criticism from a number of quarters, most importantly womens’ groups, on many counts, including the fact that the court disbelieved the rape survivor and went on to hold that a “feeble no” could, in fact, mean “yes”.
Farooqui had been convicted of rape by the trial court under Sec 375(d) of the Indian Penal Code, which brings theact of putting a person’s mouth to the genitals of a woman within the definition of rape. The trial court had sentenced Farooqui to seven years.
The High Court, however, held that given the facts and circumstances, it was difficult to understand whether the survivor had given her consent to the act and whether Farooqui had understood it or not. The judge gave the benefit of doubt to the Farooqui. It was in the circumstances, that it held thatit was “not unknown that a feeble ‘no’ may mean a ‘yes’” and though if the parties are strangers, the same cannot be said. But if the parties are known to each other and are academically proficient, it could be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.” The judge further said that the “[a]bsence of any real resistance of any kind re-affirms the willingness. An expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape.”In making the above observations, the Court disreguarded the evidence of the survivor that not only had she clearly said no, she did not fight back as she feared that more harm on her.
The Court also observed that Farooqui had no opportunity to know that there was element of fear in the mind of the survivor, which she did not communicate. The judgment referred to the history of the relationship of the parties and noted that the relationship extended beyond “friendship”. The Court took into consideration Farooqui’s Bipolar Disorder to contend thatit could have had an effect on his perception of the survivor’s gestures. The survivor argued that the commission of rape had nothing to do with Farooqui’s mental health, which the court disagreed with. The judgment doubts whether the incident of rape ever occurred at all, even though the court acknowledged that survivor showed signs of post rape trauma.
The decision has been heavily criticised for incorrectly appreciating the law relating to the consent of the survivor of rape, which is paramount; the role of the survivor’s testimony in rape trial, which has to be given utmost importance, unless there are extraordinary circumstances; and also the lack of struggle when the offence has been committed, which does not indicate consent [Mahmood Farooqui v State (Govt of NCT of Delhi, Criminal Appeal No. 944 of 2016, dated 25.09.2017].

Major Decisions
i. Resignation of senior Guj. HC judge brings renewed scrutiny to judicial appointments: Justice Jayant Patel, the senior most judge in the Gujarat High Court,  serving as the second senior most judge in the Karnataka High Court resigned on 26th September, causing serious questions to be raised about the process of judcial appointments in the country. Despite his seniority, J. Patel was not made achief justice or acting chief justice of any court. He had only 10 months left to his retirement. The decision of the Collegium, which includes the Chief Justice of India and the other senior most judges of the Supreme Court, was to transfer him to the Allahabad High Court, where he would have been only third in seniority. As per some reports, the current government was unhappy with J. Patel as hehad directed the inquiry into the Ishrat Jahan case be done by the CBI. Meanwhile, his resignation has created furore in legal circles. Bar associations in Gujarat and Karnataka condemned the circumstances around his resignation. The Karnataka Bar Associationalso called for a strike. Former head of the Supreme Court Bar Association and Senior Advocate, Dushyant Dave commented that J. Patel was being victimised by the Government aided by a“spineless”Collegium. Lawyers in Bengaluru have written an open letter to the Chief Justice of India highlighting lack of transparency in the collegium system. In the mean time, J. Patel’s resignation has been accepted by the President.

ii. Simultaneous proceedings under securitisation law and arbitration for recovery loans permissible: The Supreme Court held that both arbitration proceedings and proceedings under the securitisation law (SARFAESI) can be initiated with respect to a loan account. It held that SARFAESI proceedings were in the nature of enforcement proceedings, while arbitration was an adjudicatory process. In the event that the secured assets were insufficient to satisfy the debts, the secured creditor could proceed against other assets in execution against the debtor. This can happen after determination of the pending outstanding amount by a competent forum. [M.D. Frozen Foods Exports v. Hero Fincorp, Civil Appeal No. 15147 of 2017, judgment 21.09.2017]

iii. Supreme Court further clarifies the new I&B Code:The Supreme Court held that the existence of a dispute by itself, without the initiation of any legal proceedings in court,was sufficient to make an application for insolvency resolution at the instance of operational creditor. The Court held that the adjudicating authority was to examine whether a plausible contention of a dispute existed, which required further investigation. It clarified that the “dispute” had to be more than a feeble legal argument or an assertion of fact unsupported by evidence.[Mobilox Innovations Private Limited v Kirusa Software Pvt. Ltd., Civil Appeal No. 9405 of 2017, dated 21.09.2017]

iv. Guidelines to be laid down for Nirbhaya fund:Noting that there was an utter lack of clarity on the usage of the Rs. 3000 Cr. Nirbhaya fund, the Supreme Court has taken upon itself to lay down guidelines for its disbursal. The Fund was set up after the December 16th gang rape and murder of ‘Nirbhaya’ in 2012 and has been designated for the imporvement of safety of women in the country. The Court noted that many States had spent money without providing adequate explanation for the expenditure. It also observed that three ministries of the central government were involved in the disbursal mechanism and yet none appeared to know what had to be done [Nipun Saxen v. Union of India, W.P.(C) No. 565 of 2012, order dated 22.09.2017]

Wednesday, 4 October, 2017