From Mathura to Farooqui Rape Case: The Regressive Patriarchy Found Its Way Back

Abstract

Way back in 1972, a tribal girl was raped in custody by two constables in Desai Ganj Police Station in Maharashtra. The Supreme Court in Tuka Ram v State of Maharashtra (also known as Mathura’s rape case) acquitted the two accused policemen on the ground that the victim has raised no alarm, there was no visible injury mark on her person thereby it could be assumed that she has consented and not protested, she is habituated to sex, ‘she might have incited the two drunk policemen’ and therefore no rape is committed. Immediately after this verdict is pronounced, four legal luminaries, wrote an open letter to the Chief Justice of India protesting against the manner in which the accused have been acquitted and the concept of consent has been defined by the Court. Subsequently, the Criminal Law (Second Amendment) Act, No. 46 was introduced in the year 1983 and the provisions relating to rape law were amended. During the process, attempts were made to elaborate on the concept of consent, to put the onus of proving the guilt on accused rather than the victim, believing the victim’s version, emphasis on not taking into account the past sexual history of the victim during the trial and similar such reforms were made. Recently, the Supreme Court, while pronouncing its verdict in the Nirbhaya’s rape case too has upheld that the victim’s version alone is sufficient for the conviction of the accused. The progressive reforms, therefore, have been made in the rape laws until now, till the judgement delivered by the Punjab and Haryana High Court in the Jindal University rape case on 13th September 2017 as well as the one pronounced by the Delhi High Court in Mohd Faroouqi versus State (Govt of NCT of Delhi) on 27th September 2017, while neglecting the Nirbhaya’s case decision pronounced on 5th May 2017 and overlooking the reforms in the rape law, once again reopened the debate on consent in such cases and redefined what constitutes rape. Appalling attempts were made to dilute the provisions of the rape law. These two callous decisions by two different High Courts, one after the other, dismantled the concept of consent, ripped apart the framework of justice as well as dignity of women and made a dent on the concept of autonomy of a woman. These verdicts show that patriarchy still prevails and that the sexist misogynist mindset within the court rooms has not changed. The law embedded in patriarchal socio-cultural and sexual norms fails to see the rational logic and objectivity and negates to see the concept of consent in its wider perspective thus pushing down the regressive reasoning against which the women’s movement has painfully struggled for long. Both the High Courts, Delhi as well as Punjab and Haryana with their anti-women patriarchal and regressive views completely overturned the gains made in the arena of women’s rights by negatively and conservatively interpreting the definition of consent while reifying the old stereotype of an ideal rape victim, rape, resistance and consent. These verdicts have made a deep blow to the hard-won progressive advance and points to overt and covert backlash against gender friendly laws. This politics of backlash which highlights misuse and abuse of gender sensitive laws is much more evident in these judgements and needs to be countered and confronted by articulating and utilizing a radical understanding of feminist jurisprudence.