- whether the incident as the prosecutrix narrated it took place;
- if it did take place, whether it was without her consent; and
- if it was without her consent, whether Farooqui could discern or understand this.
The last conclusion flows from a deeply problematic understanding of consent, and the Court’s reasoning behind its first two conclusions is also inadequate in several respects.
Flawed understanding of consent
The crux of the judgment lies in its last conclusion: that the prosecutrix’s lack of consent was not communicated to Farooqui, or at least, “it is not known whether he has been communicated that there was no consent of the prosecutrix.” (86)
Now, the court itself admits that after Farooqui expressed his sexual desires to the prosecutrix, she said ‘No’ and pushed him away. How then does it conclude that she did not communicate her lack of consent? By reiterating a deeply regressive yet sadly ingrained logic that is continuously used to de-legitimise rape — the court holds that, sometimes, ‘no’ means yes.
The court outlines various scenarios in which ‘No’ takes on different meanings. If the parties are strangers or in a prohibited relationship, or if one of the parties is “conservative … and is not exposed to the various ways… of the world,” then a simple ‘No’ or mere reluctance is enough. But in acts “of passion, actuated by libido,” things get more complicated. Crucially for the Farooqui case, “when the parties are known to each other, are persons of letters … intellectually/academically proficient” and have had physical contact in the past, then the court holds that “it would be really difficult to decipher whether little or no resistance and a feeble ‘no’ was actually a denial of consent.”
The judgment’s reasoning for such a polysemic ‘No’ is shoddy, confused, and dangerously absurd. The court does not explain why being “of letters” or “intellectually/academically proficient” affects what ‘no’ means. Why past sexual contact matters to the court is particularly dubious, given the high court itself states elsewhere that “past conduct will definitely not amount to consent,” and that consent is a must for every sexual act, every time (74).
The Delhi High Court seems to advance one additional justification based on gender stereotypes, only to simultaneously reject it. The court states that sometimes, in “woman behaviour,” no may mean yes. It outlines how men and women are socialised to reciprocate sexual consent differently, since men are normally seen as initiators of sex. But the court then immediately discredits this line of thought, stating that this “may not be the situation” in today’s world, where equality is a “buzzword” (and fundamental constitutional value, as the Court should have added).
The court’s argument that ‘no’ can have a double meaning is also odds with the Indian Penal Code (IPC) provision on rape. Explanation (2) to S. 375 states that consent is an unequivocal voluntary agreement when a woman, by verbal or non-verbal communication, communicates willingness to participate in a specific sexual act (emphasis added). As the judgment itself states at various places, consent must be an affirmative, “clear, and unambiguous agreement, expressed outwardly through mutually understandable words or actions” (86). It is hard to see how saying ‘no’ can be clearly, unambiguously and unequivocally construed as actually saying its opposite.
The court, however, seems to suffer no hardship in doing so. Asserting that ‘no’ can have multiple meanings allows the court to separate what the prosecutrix actually said in plain English, from what “has been communicated” to Farooqui. In describing the facts of the case, the court stresses that even though the prosecutrix initially says ‘No’ and pushes Farooqui away, she “ultimately goes along” and feigns an orgasm (82). From this description, the court concludes that even though the prosecutrix may have faked the orgasm to end her ordeal more quickly, “what the appellant has been communicated is… that the prosecutrix is okay with it and has participated in the act” (82).
It may be worth repeating the obvious. If the court accepts, as fact that the prosecutrix said ‘No’ to Farooqui and pushed him away, then her ‘ultimately’ going along was her being subjected to sex without her consent.