The Problem, and the Problem in the Solution
This becomes a story all so familiar, yet shocking, when the headlines are set ablaze every third day. This becomes a story of a victim hoping to seek aid from a source that claimed to work on the principles of neutrality, but instead, gets trapped in a witch-hunt orchestrated by the same machinery. It is a story as old as time, as repetitive as a sunrise and as deeply rooted and damaging that the disease remains undetected and is allowed to propagate untethered. It is in this context that the present case unravels.
The September 2017 Mahmood Farooqui judgement sat amidst the newly amended Section 375 with its redefined and expanded boundaries, and the pervasive misogyny of the Indian court system curbing those expansions. It presents to us an interesting conflict, one that highlights the transformative nature of the legal system of India on one hand, and its power to acknowledge systemic problems of the society it situates itself in, and on the other hand, it makes something quite troubling very prominent. The assumption of viewing the system as completely divorced from the society within which it functions, and therefore, not itself imbedded within the systemic problems is an assumption that belittles the complexity of the justice system.
Indeed, the sexual politics at play outside the court room resemble something akin to the sexual politics inside its doors. The roots of this disease enslave the courts, rendering it fruitless in delivering a neutral stance, and transforming into nothing more than another custodian of the culture of misogyny.
It has become an established fact that when such baffling, and intricate problems arise, the intelligentsia class turns its heed to seek the remedy of the problem from the inexhaustible and perennial source of knowledge lying in literature, especially that of Sanskrit and Vedic origins. From the codification of laws during British Raj, to recent inclusion and admittance of literary text encompassing varied genres, in judgements such as in the Navtej Johar case, the reliance on bodies of such text for filling the holes between the law and society enunciates this particular behaviour of the courts as well as the intelligentsia class.
The Mahabharata and the Ramayana that have been quoted as recently as in 2021 in the Priya Ramani Case (specifically with respect to dignity of women), hence, become fundamental in this parallel. It is claimed that the Sanskrit Literature that these epics come under is seen to possess profundity and variety and lessons that thread the intellectual and spiritual life of India.
But the static nature of these texts in today’s age, with respect to the intellectual and spiritual life of India becomes its downfall; the result of which leads to perpetuation of antiquated tropes that are harmful for equity and justice. My attempt, here, is to draw parallels between the long-standing dynamics of these mammoth epics to the dynamics within the courtroom, specifically in the case of Mahmood Farooqui, and thereby present the harmful side of the symbiosis between the culture of law and that of literature. The language used within the text of the judgement and the imagery and references it draws from these epics, all collaborate together to feed the culture of misogyny and reflect on a need for feminist articulation within the epics, and collaboratively, within the judgment texts.
Alas, if this intervention is not made, the current predicament of purity tests, and disregard of women’s agency will remain deeply rooted within the classes that are supposed to pave the path of the transformation. We will, retroactively, continue to see the objectification of Draupadis and the disdain towards Sitas; and the narrative of women’s bodies reduced to battlegrounds for male aggression shall live evermore.
The Witch and the Virtuous
From the character assassination and the mud-lynching, to the willing erasure of the female voice, the combination of these tactics become common characteristics across the board in the background of the setup of the Mahmood Farooqui Case. The main plot point in question becomes the slander to the victim’s character by revelling in her sexual experiences or “misbehaviours” by the defence. Her past relationship is correlated to her present consent, signalling the derogatory process of a rape trial and tarnishing the portraiture of the victim, till she is type casted as nothing but a profit seeking, lying, homewrecker. Her refusal to the sexual act, no longer seen as credible, and in other cases, unfortunately, not even necessary.
A predicament that was jarringly clear in the Mathura Rape Case, where the promiscuous nature of the victim became the sole focus of the judgement and eventually, the leading reason of the acquittal. This reasoning unfolds itself within the confines of the High Court of Delhi, and later, it is upheld by the Supeme Court, expressing the magnitude of the internalised misogyny indoctrinated in such a transcendent fashion. Mahmood Farooqui’s victim’s coherency is tattered even when her story remains the same at every stage of investigation and all other communications she has made before the course of the investigation. Her strength in wanting to maintain her relationship with her oppressor, who was a friend foremost, is seen to insinuate the lack of gravity of the crime, which is concluded to mean, somehow with no logical correlation, that it did not even take place.
This common parlance, of the virtues “unbecoming of an Indian women,” who has suffered rape is a parlance created by the courts to define an idolised Indian womanhood, stemming from patriarchal notions, to distinguish the bad women from the good, and somehow justify the male aggression to the bad ones. It negates the varied experiences a woman suffers because of the trauma caused, and while the Mahmood Farooqui judgement has been quick to spot this demerit, the defence’s heavy reliance on the parlance in the court, and the final decree in their favour, effectively asserts itself as a tool for the lawyers in a rape trial, making the imagery of witches and princesses a contemporary, legal trope.
The Karnataka high-court judgement relied on this jargon as recent as in 2020, by claiming an “Indian woman raped won’t sleep after getting raped” stands testament to this fact. The characterisation of Raavan’s “demoness” sister, Shurpanakha, as evil due to her promiscuous appearance and nature becomes a leading example we can borrow from the epics. Lakshmana becomes the judge of her indecency and “audacious” ability to express her sexual desires and his response to punish her by exerting violence is seen to be the rightful response. And while there is staunch support on either side of Shurpanakha’s narrative, the fundamental point remains, she was villainised from the very beginning, as she depicted characteristics that were contrary of a pious, model Indian woman, and for that, any punishment afflicted to her is valid. She was “the bad woman,” “the evil temptress,” “the witch,” the punishment of which was male sanctioned judgment and violence.
The culmination of these elements makes the entire process of a rape trial, and that of Mahmood Farooqui’s to resemble a test of the woman’s so-called “purity,” rather than an investigation of his conduct. It is a tilted hegemonic scale from its very foundation, with an urgency to protect the reputation of the proud and honourable man. All elements seemingly surprising within the context of the modern, developed legal system, but still, rampantly used. With Sita going through fire, and coming out unscathed to prove her chastity, similar expectations are raised for contemporary women to classify them as “good women.” If they fail to meet so, the aggression exerted towards them, like to women like Shurpanakha, or Mahmood Farooqui’s victim, or Mathura is moulded to be justified. In other instance, their oppressor is transformed to be her brother on Raksha Bandhan and sworn in to be her knight. In another, he is asked to marry her, to justify his violence.
“A Feeble No Also Means a Yes”
Draupadi’s victimised body turns into a speaking, fighting one, one that pleads humanitarianly, raising questions at the legitimacy of a man blessed with upholding justice who stakes his own wife in a game. She relies on a legalistic argumentation too, urging the court to contemplate the staking of a wife by a man who himself was already a slave, no longer a master of his own. All pleas landing on the noble, but deaf ears, till she is finally avenged by the miracle of Krishna and later, hailed a hero for winning back her husband’s losses.
It is the story of the same Draupadi whose will did not matter when her mother-in-law declared her to be shared between the brothers of her husband. It is the story of epic proportions, of Draupadi from the Mahabharata, who was born of fire and earth, a mistake when her father just asked for a son, who is hailed to be this extraordinary woman for having five husbands, yet, silenced and objectified, to fit the mould of a dutiful wife. Her “no” bent to mean nothing in front of her honourable husbands. She stands testament to the opening words of the Hadiya Judgement, where former CJI Dipak Misra comments on the continuous attempts of the father to undermine the girl’s choice and garotte her desire. The thought itself, he says, is a manifestation of the idea of patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel. Yet, the same court, is party to such objectification of the female choice.
In the case of Mahmood Farooqui, a similar dialect of infantilising and invalidating a women’s say is at play, but it takes it further by defiling the definition of consent with respect to sexual offences. The court declares that, “an expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape,” where consent in the same judgement is described as an “unequivocal yes.” The question of this shift in understanding of consent in the present case, hence, becomes pertinent to probe. Why must this honourable court, the one worthy and capable of listening to Draupadi’s legal argumentation, be silent to her pleas? Why is this court party to her shame? They do so by taking his perspective, undermining her “sterling” testimony completely. The judicial prose is mesmerised by older and lettered men, who may read a “no” as a “yes” and a push as an invitation, men who assume that women really do not actually know their own desires and secretly love being pleasured by oral sex, irrespective of consent, men who still believe persuasion shall lead to submission.
The bias exists, because the hegemonic differences of viewing the sexes exist. The bias exists because women’s desires are conveniently articulated and viewed from the perspective of a man. An Australian court declared “stalking” quite normal behaviour of Indian men and because of this cultural background, the accused man was exempted of punishment. The overwhelming narrative, of persuasion leading to bending the will of the woman, and eventual submission, is glorified by Indian literature dating years, lauded by modern-day cinema, and upheld by courts India and abroad. This narrative assigns the responsibility to the man to assert his advances, even if unwanted, on the girl who is fragile and “does not know what she wants,” and becomes the reason men like Farooqui are protected and get away by sending in their sincerest apologies, even when the testimony proves them to be guilty.
The defence of Mahmood Farooqui claimed that the accused’s admission by apologising for the act was made for not satisfying her; a conclusion that Farooqui came upon by interpreting “what happened the other night was not right,” “…and you went too far,” as they were the only lines he bothered to read. This “casualness” is seen to be testament of a notable, well-established man, and is used to assert his status, his shield from such a behaviour. The defence also claims that as soon as he interpreted what had actually been stated in the mail, he called her to end their relationship.
The overwhelming crassness of this version of the interaction that they are trying to present, derives its strengths from a “logic” that accepts the power disbalance in the conflict, rather than confront it. Mahmood Farooqui, an established man, can throw his weight around, as the female research student does not know what she wants. Farooqui, even if wrong, cannot be antagonised as the woman was clearly promiscuous and accepted his advances before. Mahmood Farooqui, the married man, who blocks out a woman urging him to make amends for he has wronged her, can do no wrong. The dual power of demonising and infantilising the victim, shreds her stellar testimony till she plays a caricature of womanhood puppeteer-ed by the hegemonic relationship between imageries, cycles of degradation and arguments drenched with ad hominem, rendering them defunct to carry out transformative change towards an egalitarian society.
The text and speech need to change, for the stories and their outcomes to change; an influx of feminist language is our only answer. This need, in part, made imperative by the recent Supreme Court judgement that urges bail orders to avoid reflecting patriarchal notions about women and their place in society, highlighting the role the legal text plays in curbing the perpetuations of such harmful tropes. From the literary point of view, the epics continue to be an important and contested part of the cultural field, and the feminist appropriations of them, will help absorb and respond to the challenges of modern legal questions. It is through this collective endeavour that the culture of law and that of literature can begin to apologise to the Shurpanakhas, the Sitas and the Draupadis. It is then, they can begin to advance forward.
Sriyanshi Bhatt is a Law Student currently at Jindal Global Law School, who is passionate about exploring the flexibility of legal writing, especially through a gendered perspective. While not sending out letters for police reform or raptured by a new theory, she can be found in an art museum, soaking in its calm. She can be found on Instagram.
Featured image source: Outlook India