By Sharanya Gopinathan
When everybody’s favourite American Supreme Court judge Ruth Bader Ginsburg was asked how many women judges in the Supreme Court would be “enough”, she responded saying nine (or the full bench). She said, for all of history, we found nothing wrong with all-male benches, so why not?
Personally, I’ve always felt that we needed more women in the Indian judiciary for representation, since only 10 percent of the Indian higher judiciary consists of women, and we have only one lone woman judge in the whole Supreme Court (who happens to be, as this earlier TLF piece points out, only the sixth in our entire legal history). But now, after seeing the Delhi High Court’s ridiculous judgment in the Mahmood Farooqui rape case, I feel confident in saying that we don’t just need more women judges on the bench, we actually need to deliberately and urgently infuse our entire judicial system with feminist thought if we’re to have a hope of cleaning up the mess the judiciary continually reveals itself to be.
Because you see, no matter what your lawyer friends say about the law being a perfect, rational, unbiased object, the legal system is inherently masculinist. It can’t help it: It was made by men, for men and has an unabashedly obviously male worldview. It isn’t just the language of the law that’s sexist (like when it patronisingly creates exceptions for “women and children”, makes references to women’s “modesty” or uses male pronouns for all of us as if they’re gender neutral), but also its very understanding of how the world works, like when it assumes that a woman consenting to marriage means that she consents to any and all sexual encounters with her husband for the rest of her life, or when it upholds that child rape is permissible if you marry the child. Plus, Indian law frequently fails people who are not men: For example, it recently came to light that the verbiage of Sec 377 (which criminalises “unnatural” sex with a man, woman or animal) ignores the very existence of transpeople. This was a loophole that actually allowed a court to grant bail to four men accused of raping a transwoman from Pune in June 2017.
It’s going to take decades to correct all the big and small gender biases that have been encoded into the law, and this isn’t work that can be undertaken casually. In the meanwhile, we can’t have judges muddying already dirty legal waters with damaging new judgements, and Justice Ashutosh Kumar’s judgment in the Farooqui rape case does just that.
Historian, performer and film director, Mahmood Farooqui was accused in 2015 of raping an American woman through forced oral sex at his Delhi home. He was found guilty of rape by a sessions court in 2016, which was overturned by the Delhi High Court on Monday. In pronouncing Farooqui not guilty of rape, the Delhi High Court audaciously ruled that when it comes to sex, a woman’s “feeble no may mean yes”, and that the straightforward idea of consent (no means no) doesn’t apply fully in cases where “the parties are known to each other and if there has been physical contact in the past”.
Maybe it’s just me, but you get the overwhelming feeling that this is the kind of judgment only a man could write.
In this case, the Court has taken a visibly masculine view of consent, and used the same rhetoric that allows men to create a legal exception for marital rape (by pointing to consent given in the past), and that shames sexually active rape victims (by assuming that previous physical contact affects your ability to say no later). In questioning the strength of the victim’s “no” and pondering whether the lack of consent was communicated in a way that Farooqui understood, senior lawyer Rebecca John says the Court is actually “adding on fresh parameters to the concept of consent which firmly have no basis in law, and actually go against the letter of the law as contained in Sec 375 and Sec 144 A of the Indian Evidence Act.”
The judgment also makes the mistake of implying that since the victim faked an orgasm to end the ordeal, that could have communicated her participation to her attacker. This is another masculinist understanding of sex, biology and consent that flies in the face of research and feminist scholarship: Research indicates that 4 to 5 percent of rape victims, primarily boys, admit experiencing orgasm during rape, although the actual number is probably higher. Science is clear that orgasm does not signify consent. The judge, in implying that Farooqui might have seen the orgasm as wilful participation, is once again clearly coming from a male-centric understanding of sex and sexual pleasure.
The specifics of this case show you just how much potential there is for rape cases to be handled in ways that do lasting damage to women. Conversely, they also hold potential to do good and create feminist reform, as long as the judge is committed to doing so. And this is why we need feminist judges so very badly.
If you’re not convinced of how urgent the need for feminist overhaul of the judiciary is, just look at the effect this single ruling will have. This judgment won’t just affect Mahmood Farooqui and the woman who was raped: the Delhi High Court is a Constitutional court, which means that this ruling sets a precedent for lower courts, and is binding until overturned by a larger bench.
John says, “One of the worst parts about Monday’s judgment for me was the panic calls I received from other women involved in ongoing or upcoming trials. They were asking me ‘Ab hamara kya hoga’, because every rape case has these kinds of complexities. These kinds of judgments have a chilling, rippling effect. They spread fear [in the minds of women], but we can’t allow women to give up the fight.”
Perhaps this process of change has already begun in some small way. In the recent Right to Privacy case that had us all so excited, J Chandrachud’s judgment contained two paragraphs (conveniently labelled ‘Feminist Concerns’), taking a feminist view of the concept of private space and the privacy according to it. This kind of thing is a good place to start, and we need a lot more of it: We need judges to engage with feminist principles from the beginning to the end of the judicial process, not just in sub-section in a judgment. We need our entire judiciary to be feminist, not stop at writing feminist paragraphs.
The task of making the law speak to women’s needs and experiences is a difficult one, because it involves deconstructing legal concepts that have been accepted as unbiased for decades. It involves looking at the cases judges choose to cite, the forms of witness testimony they allow, the legal principles they adopt, and the facts they chooses to deem pertinent. The court, its processes and judgments should be thoroughly and completely infused with feminist sensibilities if they’re to be fair to women at all.
Co-published with Firstpost.
Correction: This piece originally said that four men in Pune accused of raping a trans woman were acquitted by the court. This has been corrected to reflect that they were granted bail.