Mahmood Farooqui case: Why it's wrong to say India's rape laws are draconian

A fierce debate rages on over the so-called new rape laws post the conviction of Mahmood Farooqui, writer, artist and co-director of Oscar-nominated film Peepli Live. He has been convicted of raping an American Fulbright scholar from Columbia University when she was in India for her doctoral research. Farooqui has been sentenced to 7 years imprisonment by a trial court, the minimum punishment under the Indian law.

Noted feminist and lawyer Flavia Agnes, commenting on Farooqui’s conviction, has said that no medical evidence could be taken with regard to the Mahmood Farooqui case, and that he has been convicted based on circumstantial evidence and courts should be careful in doing so.

She further says that convictions must not be based on media attention and hype. All these statements have been made generically without a direct reference to the case, but in response to questions asking her view on Farooqui’s case.

Also read: Breaking my silence about rape accused Mahmood Farooqui

In an interview to India Today, she begins by saying "she has not read the judgment completely". Her further argument is that the minimum stringent punishment of seven years is too harsh and there must be categories of rape to decide the quantum of sentence.

And Flavia is not the only one. Ilina Sen, professor of Women's Studies at the Tata Institute of Social Sciences talks as to how the "new rape laws" disproportionately place the "burden of proof" on the accused. Her further argument is that one cannot constantly fall back on the Nirbhaya incident, and each rape is different.

Anusha Rizvi, journalist, writer, director, and Farooqui's wife, said in a statement to India Today, "Independent record makes the charge of 'forced oral sex' against Mahmood Farooqui simply impossible. The conviction is unjust for it ignores irrefutable evidence on the most flimsy grounds. The complainant is consummately discredited by independent call and cab company records which were presented in Court. The defence team has adhered to all feminist principles during the trial and no aspersions on the complainant’s character were ever cast by the defence. The complainant and the prosecution argued that retribution is a public cry and that the nation would fall into disrepute if enhanced penalty was not awarded in a case where the complainant is a foreigner. Lives and reputations are irretrievably lost when there is denial of justice, but our fight for rightful exoneration continues. I firmly believe that we will secure justice in the High Court."

The purpose of this article is not to comment on whether the court interpreted the evidence correctly; only the Delhi High Court can decide that. But this case has been used by many to propagate myths about the rape laws and build a discourse as if there is a broader problem with the "new rape laws".

The prime myth is that the rape laws put the burden of proof on the accused, and secondly, a conviction can happen solely on the victim’s testimony. Further, it is assumed that the new rape laws are draconian in ways as to not to allow the defence to present their side leading to courts completely disregarding any defence evidence.

Let me begin by clarifying that the so-called new rape laws under the Criminal Law Amendment Act, 2013 which came into force post the Nirbhaya rape case do not place the burden of proof on the accused. The evidence for the rape law is guided by the evidentiary principles of criminal law and the guilt needs to be proved beyond reasonable doubt.

Also read: Farooqui's conviction a victory for rape victims, but does it taste all sweet?

Neither any provisions of the Indian Penal Code or Criminal Procedure presume a defendant to be guilty until proven innocent. The burden of proof remains on the prosecution.

There are three notable changes which the 2013 Amendment brought. First, it broadened the definition of rape to include oral, non-penetrative sex. Second, it prescribed a minimum punishment of seven years upon conviction, and third, it clarified explicitly that the past sexual conduct of the complainant cannot be used to decide the issue of consent.

So the "feminist principles" which Anusha Rizwi talks about are now translated into law and cannot be claimed a virtue of. The past sexual conduct, sexual history and so on cannot be used in the cross-examination under law. Rape laws across the common law world have strived to ensure that the sexual history of the complainant is not used to discredit complainant’s testimony and affect the issue of consent.

Secondly, when one says that a person can be convicted solely on the basis of a victim’s testimony, it has to be read with ordinary laws of evidence that it must be consistent, firm and no ulterior motive can be adduced. Further, the testimony of the victim merely raises a presumption against the defendant which he is free to rebut in the court of law.

So, for example, if I have been physically assaulted, say slapped, on street by two men, my testimony and identification will be admissible as evidence. But the accused would be free to show that they were not in the city or having dinner at home, or my complaint is malafide since I owe them five lakh rupees. The truth of my testimony will have to be proved beyond reasonable doubt, or circumstantial evidence will have to be adduced.

If testimony of the victim is firm and consistent, then, according to Supreme Court judgment (State of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990) which date much back to 2013, a conviction can happen solely on testimony. The Supreme Court has clarified in the 1990 judgment that a victim must be treated as a witness and not as an accomplice in the criminal basic laws of evidence.

One may disagree with a judgment arguing that the evidence was not interpreted properly, however, it is case-specific at best. To extend that disagreement to allege problems with the existing law of the land is plainly misleading.