A feminist analysis of Mahmood Farooqui v. state: the issues of consent, power and real rape

Mookherjee, Ishani (2020) A feminist analysis of Mahmood Farooqui v. state: the issues of consent, power and real rape. Indian Journal of Legal Theory, 2. pp. 31-42.

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The essay critically analyses the flaws in the Delhi High Court’s interpretation of the rape law provisions in the Indian Penal Code, 1860 post-2013 Amendment, in the case of Mahmood Farooqui v. State, using the lens of Radical Feminism. While Section 375 envisions that consent should be ascertained from the woman’s perspective, the Court excessively emphasized upon what had been communicated to the accused, thereby reinforcing the idea of ‘man’s objective standard’ and using the male gaze to judge the prosecutrix’s conduct. By adopting a purely performative account, the Court ignored her mental state and the convoluted power dynamics of man-woman and mentor-student relation between the parties. The Court’s remark that a feeble ‘no’ may mean a ‘yes’, especially in ‘acts of passion’ between known people, indicates how it failed to recognise that passive acquiescence is not tantamount to meaningful consent. Lastly, by refusing to acknowledge that ‘borderline’ situations may constitute rape under Section 375, the Court reinforced the obsession with patriarchal conceptions of real rape and battered victim. Thus, in light of feminist jurisprudence, the judgment reinforced patriarchal norms, legitimized a masculine view of consent and ultimately, made the woman responsible for active resistance.

Item Type: Article
Keywords: Mahmood | Rape | India | Law | Delhi High Court | Feminist
Subjects: Social Sciences and humanities > Social Sciences > Human Rights
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Gena Veineithem
Date Deposited: 26 Mar 2022 16:40
Last Modified: 26 Mar 2022 16:40
Official URL: http://centreforlegaltheory.in/Mindfields_files/is...
URI: https://pure.jgu.edu.in/id/eprint/1851


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