Less than 18 months after being held guilty of rape, Mahmood Farooqui was acquitted of all charges by the Delhi High Court, and last week, the Supreme Court upheld his acquittal, dismissing the appeal filed by the victim in a non-speaking order.The analysis below is based on the oral exchange between the Bench and the counsel appearing for the victim, as reported in the media.By way of background, Farooqui, a well known writer, dastango and co-director of the film Peepli Live, was accused of raping an American Fulbright scholar from Columbia University at his home, when she was in India for her doctoral research. The victim’s narration of events is that, while at his house one evening, they were alone together in the room. The accused was very drunk and depressed. During the conversation, he said he wanted to perform oral sex on her and started to do so, which she resisted verbally, but then went along with, out of fear, as he became forceful.Emails exchanged between the parties subsequently bear this out, wherein the victim has detailed her trauma and the accused has apologised.Does the Mahmood Farooqui Judgment Make Sense At All?Relying on ‘Pre-Existing Familiarity’The trial court considered all the communication between the parties, between the victim and the wife of the accused, her call and WhatsApp records, and – based on this evidence as well as the cross-examination of the witnesses – found Farooqui guilty and sentenced him to seven years imprisonment, which is the minimum punishment for the offence.The High Court reversed this judgment in appeal, holding that the act was consensual. It relied, in a nutshell, on the fact that there was a pre-existing familiarity between the victim and accused, that she knew about his alcoholism, and that they had, in the past, exchanged hugs and kisses.The most remarkable aspect of this, is the fact of two completely contradictory arguments made by the accused. At trial, he took the plea that no such act ever took place, and lengthy arguments were proffered on how the time frame within which the act was alleged to have taken place was too short, and how improbable it was that he could have done this with other people in the house.When this plea was rejected, he argued that if such an act took place, it was consensual. The High Court accepted this ‘alternative argument’, completely ignoring the fact that this was not the original stance. While it is perfectly acceptable to take alternative arguments in matters of law or legal interpretation, to do so on matters of fact is not sophisticated legal strategy, but an inconsistent, incoherent and ill-thought out move that ought to have earned the Court’s condemnation.Instead, the High Court allowed the new argument at an appellate stage, without giving the victim a chance to offer fresh evidence in response. The Supreme Court failed to see anything wrong with this, even though there are previous judgments that have clearly held that such contradictory pleas are not permissible in rape cases.The High Court also stated that the victim did not sufficiently communicate her unwillingness to Farooqui, and so could not later claim the act to be rape. The facts do not bear this out, as emails admitted in evidence suggest that she resisted and said no multiple times, and later went along with it out of fear.This lack of appreciation of the facts is disturbing – but what is perhaps more disturbing is the idea that it is based on, that the resistance has to be of a certain standard for it to count.This idea assumes that some amount of resistance to sex is natural for women, that coercion and pressure are an inherent part of sexual interaction, and that it is only when the coercion crosses a certain line, that it becomes rape.Meet Ashutosh Kumar, the Judge Who Acquitted Mahmood Farooqui“I Told You Many Times I Didn’t Want You To”The world is moving towards a standard of affirmative consent, where a person must clearly communicate that she desires the physical intimacy in question. Instead of the old slogan of ‘No Means No’, the standard is now one of ‘Yes Means Yes’.What this means is, that it is not adequate to analyse whether the unwillingness was sufficiently communicated for an act to be rape. What one must analyse instead is whether the willingness was sufficiently communicated for an act not to be rape.Explanation 2 to Section 375 of the IPC also embodies this progressive idea, in stating that consent requires unequivocal communication of willingness, and not mere lack of resistance. The High Court acknowledged this standard, and then spectacularly failed to apply it, in its formulation of the ‘feeble no’ theory. It held that there can be instances where a feeble no can mean a yes, especially if the parties are known to each other, and, bizarrely, more so if they are highly educated or intellectual people. That a ‘feeble no’ meets the standard of ‘unequivocal communication of willingness’ is frankly absurd.The Supreme Court held this to be a ‘well-decided’ judgment.The Supreme Court further relied on the email sent by the victim to the accused after the act, where she wrote:…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…In the end, I consented because of pressure and your own force physically on me. 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.Ignoring everything this email said about force and pressure, the Court focused its energy instead on the fact that she concluded with an expression of affection, asking the victim’s lawyer, “How many instances of rape have you come across where the victim says ‘I love you’ to the assailant after the incident?”When the counsel responded that it was common in cases where the parties were close to each other, such as cases of incest, the Court brushed this aside saying – “We are not concerned with such particular instances” and emphasised that the parties had kissed earlier, observing that, “This kind of behaviour is not acceptable between persons who are just friends”.Anatomy of a Rape Trial: A Timeline of Mahmood Farooqui Rape CaseUnderstanding the Limits of the LawThroughout the exchange, the Court maintained that consent cannot be presumed on the basis of pre-existing familiarity or intimacy between the parties, yet proceeded to acquit precisely on that basis. The High Court too, made all the right noises about consent and sexual agency, about the fact that prior intimacy cannot be a factor in judging such cases; yet, in its judgment that was the only factor that carried any weight.The conclusion one can draw from this dissonance is the depressing, yet useful realisation of the limits of the law.Legal reforms and awareness are meaningless, when the people who have to implement the laws still cling to outdated and patriarchal ideas of how women should behave and what constitutes acceptable sexual conduct. All that has changed is the effort that judges make to conceal these ideas behind a veneer of modernity, making it harder to identify and locate the problem.The concern here is less about whether Farooqui was convicted or acquitted in the end, than it is about the judicial reasoning that forms the basis of his acquittal and the arguments that found favour with the Court. That is what will cause lasting damage to the progress of women’s rights and justice.That these arguments were also made, both inside and outside Court, by avowed feminists, is the subject of a separate analysis, but is no less damaging.(Mihira Sood is a Supreme Court lawyer, and is currently researching the Indian women’s movement and its use of criminal law.) We'll get through this! Meanwhile, here's all you need to know about the Coronavirus outbreak to keep yourself safe, informed, and updated. The Quint is now available on Telegram & WhatsApp too, Click here to join.