Supreme court KEEPS ‘LOVE’ LIVE!

Indeed, strange are the ways of passion. When courts are called upon to resolve the passion related crimes, it becomes a herculean task not only for the judges concerned but also for the lawyers and the policemen.

The Supreme Court has encountered one such case recently. On January 19, a Supreme Court Bench of Justices S A Bobde and L Nageswara Rao refused to admit the Special Leave Petition (SLP) against the judgement of the Delhi High Court acquitting Mahmood Farooqui, the co-director of a Hindi film, ‘Peepli Live’from the charges of raping an American research scholar.

Brushing aside the argument of the counsel for the petitioner woman that a completely new factual defence argument of consensual sex was made for the first time at the appellate stage, the Court observed: “Let us take it in the correct perspective. The present petitioner and the accused were no strangers to each other. They had a close relationship.”

To this, when the petitioner’s counsel reacted that there was no close relationship between them and they were mere acquaintances, the Court explained, “We are not using the term ‘relationship’ colloquially. We mean that they met willingly, made and had drinks together gladly,” adding, “But we are not judging or saying that any such act amounts to waiver of the right to be protected against rape.” The Court also did not agree with the contention of the petitioner’s counsel that the High Court held the victim to be a sterling witness and on the grounds of paucity of time and of the presence of another person, it was clear that she did not consent to the specific sexual activity.

The Court relied upon the first e-mail addressed by the victim to the alleged assailant after the incident which read, “ ...you did become forceful.. I went along because I feared that something bad would happen and things would escalate... In the end, I consented because of the pressure from your end and your physical force ... I love you and wish you the best...” and asked the counsel, “ How many instances of rape have you come across where the victim says ‘ I love you’ to the assailant after the incident?” The Court concluded that it was not satisfied and refused to even issue notice at the request of the counsel.

Thus, curtains wrung down on a much hyped case of the year 2015. Accused Farooqui was awarded a seven year jail term for sexually abusing the research scholar from Columbia University, USA. He was charged under Section 357 (d) read with Explanation 2 of the Indian Penal Code,1860 (IPC).

On appeal, the High Court exonerated the accused by granting him benefit of doubt. The court cast its doubt over the incident and concluded that it was not clear and concluded that it was not clear if there was consent of the victim and if Farooqui was able to understand it. Justice Ashutosh Kumar of Delhi High Court after analysing the facts of the case said, “ It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix (victim), took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same.”

“ If it appears that some circumstance could be gleaned from such already collected evidence, which ensures to the benefit of the accused, the same cannot be brushed aside on the slender ground that such plea was not taken before the trial court,” the Bench said. The first appellate court also held that consent does not merely mean hesitation or reluctance or a “No” to any sexual advances but has to be an affirmative one in clear terms.

The first appellate court concluded, “Instances of woman behaviour are not unknown that a feeble ‘No’ may mean a ‘Yes’. If the parties are strangers, the same theory may not be applied... But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘No’, was actually a denial of consent.”

The judgement is bound to send ripples to those so-called progressive groups of women and the NGOs engaged in professing ‘free from all limits sex’ including the indulgence in post-marital affairs who have made it as the ‘business’ to seduce and emotionally trap and blackmail men, particularly wealthy and others in the higher echelons of society. With this judgement, only loud and clear “No” (and not the feeble “No”) to sex which any man of ordinary prudence can understand, would be a necessary ingredient to constitute the offence of rape.

Don’t keep it under wrap
At least by now the whole nation knows that all is not well in the highest court. The open revolt by four senior judges of the Supreme Court cannot be taken lightly. There are no takers for the explanation by the ruling BJP combine that it is their ‘internal’ matter and the same should be sorted out by the Supreme Court internally.

In fact, holding a media conference and voicing their so-called ‘grievances’ before the media which is often at the receiving end from the judges saying the media reports cannot be relied upon, is nothing short of brazen indiscipline. It does amount to the contempt of their own court by these judges. If an ordinary man or for that reason even an advocate commits the contempt of a court, judges frown at him and chide him. They do not hesitate to prosecute the Contemnor and punish him with a jail term and/or fine. This is the legal position prevailing today and rightly so.

The law also provides that a judge could be punished under the Contempt of Court Act for committing the contempt of his own court.

Notwithstanding whether the allegations contained in the letter addressed by the judges to the Chief Justice of India are true or false, notwithstanding the outburst of ‘democracy is in danger’ is true or simply a rhetoric and also notwithstanding whether sinister motives could be attributed to this sordid first of its kind incident, one thing is crystal clear that by washing the dirty linen in public these judges who knew what they were talking and what would be the repercussions in the society and entire legal fraternity in the world have committed wilfully the contempt of the Supreme Court. By their act they have brought disrepute to the whole judiciary and for this unpardonable joint act they deserve to be punished in an exemplary manner.

For keeping the whole matter under a carpet would do greater damage to the country than inflicting appropriate punishment on these erring judges and supporters. After all, in the past have we not punished delinquent sitting as well as retired judges for contempt?