By – Kavita Krishnan
Misogyny makes for strange partnerships indeed. This time, the Mahmood Farooqui defence (headed by Sr Adv.Kapil Sibal) has teamed up with Madhu Kishwar to challenge the rape law amendments of 2013 (amendments that were okayed by a Cabinet of which Sibal himself, then a Minister, was a part before being enacted.)
Let me back up a bit. In January 2017, the Farooqui appeal challenging his conviction began to be heard in the Delhi High Court. Recall that Farooqui’s defenders had expressed great confidence that the High Court would overturn the conviction based on powerful documentary evidence that the trial judge had ignored.
KapilSibal, representing Farooqui, however made some strange arguments when the appeal commenced. According to this PTI story http://www.business-standard.com/article/pti-stories/hc-starts-hearing-arguments-on-farooqui-s-appeal-in-rape-case-117011600944_1.htmlSibal argued that Farooqui and the prosecutrix can been “in a relationship since January 2015” and “In a relationship when people are attracted to each other, things do happen. But it does not mean its rape,” adding that the “woman’s version is also contradictory to the documentary evidence.” This is a very strange argument since it directly contradicts the defence’s case during the trial. During the trial, Farooqui maintained that he had never kissed the woman, never shared any intimacies with her, and he denied that the alleged incident of forced oral sex ever happened. No mutual “relationship” was ever mentioned by Farooqui during the trial. Now, in the appeal, during arguments for bail pending appeal, he is suddenly claiming there had been a relationship in which “things (which are not rape) do happen.” How come the shift from “nothing happened” to “things do happen”? A dramatic shift has been made at the appeals stage, introducing claims in oral arguments, while maintaining a contradictory stance in the written appeal. Is this legally permissible? I don’t know, I’m not a lawyer. But it sounds strange to me. Why make such a claim then? The only purpose seems to be to prejudice the mind of judge by planting the suggestion that this was actually a case of a “false complaint” made by a woman to term a consensual relationship retrospectively as rape.
A thought: what if a rape victim was to change her version of the incident during arguments in appeal before the High Court. Will she or her counsel be spared? Anyway, human rights lawyering principles tell us that an accused has a right to defend himself in any and every way he can. A rape accused can therefore change from, being a virtuous man who has never cast a sideways glance at the rape victim (who makes no secret of drinking and partying, having boyfriends etc), to being in a relationship with the victim, for purposes of bail only in the appellate court. So if this is just another accused trying to escape the clutches of law and save himself from jail, why this hullaballoo about his innocence and his progressive credentials?
Sibal also sought bail for Farooqui. The judge denied bail, suggesting instead that a speedy date be fixed for final disposal of the appeal itself. The State counsel agreed for this, as did the defence and the date was set for 23 March
In the meanwhile, on 17 March, a writ petition (PIL) was filed by Madhu Kishwar in the Delhi High Court challenging the validity of several provisions of the 2013 rape law amendments. Guess who is arguing this petition on behalf of Ms Kishwar? None other than the same Kapil Sibal.
On 23 March Sibal, on behalf of Farooqui, said that they no longer want to go ahead with the appeal. Instead they said that since they have, in Madhu Kishwar’s petition, challenged the 2013 rape law amendments, the Farooqui appeal should not be heard till the PIL is disposed of! Since that will take time, they have meanwhile sought bail for Farooqui. Sibal specifically said that in cases of forced oral sex there can be no medical corroboration and therefore the constitutional validity of this provision had been challenged in the PIL.
This strange development raises many questions. The first of course is why, if the evidence exonerating Farooqui is so powerful and compelling, is his defence shy of allowing the appeal to proceed? Why introduce a wild new theory suggesting that the alleged rape was a consensual occurrence in the context of a “relationship” – and then hide behind a challenge to the constitutional validity of the rape law itself?
I also cannot help recalling that Farooqui’s public defenders including his wife AnushaRizvi are among those who baselessly and maliciously accused feminists and Left activists like myself of being part of Madhu Kishwar’s supposed project of making a communally motivated allegation of rape. Mocking the facts, vicious lies were spread on social media and by word of mouth about how the complainant in the Khurshid Anwar case was a Madhu Kishwar plant and how she and I had plotted to frame Anwar. The feminists had teamed up with the communal right wing Modi bhakt Kishwar, they alleged.
Now, the same people have no qualms teaming up with Kishwar to organise backlash against the rape law. They started out by implying that Farooqui (like Tejpal and Anwar) was a victim of a communal plot to malign secular figures – and now they themselves line up beside the well-known BJP supporter Madhu Kishwar to undermine the rape law amendments of 2013, thereby also amplifying the cacophonous choris on social media against the 2013 rape law amendments by the rape-accused Asaram’s brigade of trolls. Slow claps…
The timing of the Madhu Kishwar petition is very fortuitous – just in time for Farooqui’s lawyers to seek to avoid the appeal being heard till the petition seeking to amend rape law is settled – and seek bail in the mean time! Nice tango between the ‘secular’ MF and his secular counsel Sibal and the communal Madhu Kishwar.
Madhu Kishwar’s petition – which is up on her blog https://madhukishwar.blogspot.in/2017/03/challenge-to-unconstitutional.html – itself calls for a separate post to properly address. I’ll just make a few points about it here. She makes much of the large percentage of “promise to marry” rape cases that result in acquittals in courts. If such cases result in acquittals then they hardly prove the rape law is draconian, right?
Plus, there is nothing in the 2013 amendments specifically that facilitates such cases, and we have no evidence to show that the number of such rape complaints (or convictions in such complaints) have gone up since the 2013 amendments. She likewise plays up facts about the large percentage of cases of parental criminalization of consensual elopements, citing a study in The Hindu (a study by Rukmini S that I myself cite often in my talks on VAW, to show how ‘rape’ statistics hide and disguise evidence of coercive violence against daughters by their own parents and family). How are the 2013 amendments related to such instances, except in cases where minors between 16-18 are involved?
The fact that minors are criminalized for consensual sexual contact is because the UPA Cabinet of which Sibal was a part chose to raise the age of consent from 16 to 18, ignoring the Verma Committee recommendations and fervent representations and appeals by feminists against so doing.
So, if one cuts through the smokescreens in the petition, we come to the 2013 rape law amendments Ms Kishwar’s petition really wants changed. First among these is the expanded definition of rape to include penetration other than peno-vaginal penetration – i.e the clause that defines forced oral sex also as rape. The petition asks, “Is it reasonable, fair, just or rational to classify as ‘rape’, acts other than peno-vaginal intercourse that are incapable of medical corroboration, when the sole testimony of the Prosecutrix is sufficient to convict?” This question contains a glaringobfuscation. Long before the 2013 amendments were enacted, Supreme Court verdicts exist that upheld convictions without medical corroboration even in cases of peno-vaginal rape, based on the testimony of the prosecutrix.
It does appear, then, that the expansion of the definition of rape to include forced oral sex had become a problem suddenly only when, in one such case, a conviction has been secured and the convict happens to be a well-known man with well-placed friends. Even before Farooqui was convicted and the facts of the case out in the public domain, Kishwar seemed to have access to “details” of the case and had tweeted (on 23 Jan 2016), “Going by filmmaker Mahmood Farooqui case details, it seems he has been falsely implicated in rape case. Sadly misuse of anti rape law rampant.”
It seems then that the jigsaw begins to fall into place. Kishwar says Farooqui is “falsely implicated.” Sibal appeals the Farooqui conviction by making a new suggestion that “something happened” in a consensual relationship which the woman later gave a colour of rape in order to “falsely implicate” him. Then Sibal argues Kishwar’s petition against the rape law amendments, which waxes eloquent about how “disappointed women in many failed relationships resort to…crying rape.” Then Sibal argues that the Farooqui appeal must be delayed until the PIL is disposed of. Meanwhile, as we can imagine, sections of the media will make a meal of the Kishwar petition and raise the bogey of “false complaints.” The mask has slipped.
I’ll end with another, rather sad observation. Kishwar’s petition talks of “the irresponsibility with which a section of women’s rights activists have made use of these laws, has lent almost fascist connotations to feminism, with terms like ‘Feminazi’ coming into currency.” So, in times when the Indian Nazis (Sanghis) are attacking all our rights, we have people proclaiming themselves to be secular and progressive, joining hands with a friend of the Indian Nazis, to pillory feminists and rape complainants as “Feminazis” and undermine the more progressive sections of the 2013 rape law amendments. At a time when we should all be fighting the fascists together, some seem willing to throw gender under the bus and join the global outcry (from Trump bhakts – read here how the term originated with the notorious American right-wing figure Rush Limbaugh https://mediamatters.org/research/2… to Modibhakts) branding feminists as ‘Feminazis.’ All to protect a man convicted of rape?