The trial and judgment in Mahmood Farooqui vs State case for me opens several questions to ponder over. Mahmood is not a 'friend', I have known him as a Dastango, having watched his performances in early 2006, long before it became a feature of every cultural celebration in Delhi. I do not have even the faintest acquaintance with the complainant. I have followed the trial only by way of what has been reported in the media.
In the days after conviction - before the order on quantum of punishment was announced - facebook posts of friends as well as ideological adversaries kept asking "why is there no outrage?" Everyone seemed to be suggesting in one voice that Mahmood is "one of us", hence this silence.
I asked myself: I haven't shared or liked any of the posts (despite not being a regular on social media), am I guilty of 'silence' on a case of sexual assault. Is it because there is a 'bro-code' or 'party-code' by which I am bound? There are dozens of cases reported in the newspapers every month - including those of 2-year-olds. We all feel very angry, are disgusted but seldom have we heard these calls for 'outrage', to prove our credentials on the gender question, as now. Why now, particularly when he has been convicted?
While I am aware that anyone could be a sexual offender, when faced with a situation like this: where the accused is someone you have known as a liberal, disbelief is human. This disbelief is not, "oh he can't do it", but about your own judgment of a person. Arguments on quantum of punishment and ensuing banter on social media forced me to read more on the case.
At a cursory reading of the reporting on the case, I am nonplussed at the number of times the Nirbhaya case is conjured throughout the trial by the prosecution. Any sexual assault is a grave crime but every crime is not equally grave. It appears to me that the constant referencing of Nirbahaya is to bring to this case the extreme brutality and violence of the former, and to trigger in our minds - as well as the judicial mind - disgust and revulsion towards the accused equal to that felt towards perpetrators in that case. This itself is cause for worry.
Does it imply accusations against Mahmood Farooqui do not qualify as rape? Under the new law, they do. As the first case possibly tried under the new penal regime, Farooqui's case will be scrutinised closely. This does not automatically mean that one is 'victim blaming'. There will be analyses, even critiques of the judgments in the coming days. Have we not examined many convictions as well as acquittals in the past? What makes this case exceptional that we must foreclose any analysis? This is ultimately a criminal trial and guilt beyond reasonable doubt must be established. Farooqui's conviction will be appealed in higher courts as Farooqui, his friends and family believe he is innocent and they have a right to do so.
But calls for 'outrage' do not serve the cause of justice. How are these calls different - except in degree - from the calls for publicly killing or castrating rapists. The trial was completed in record time - and we cannot shy away from the fact that the speed was possible also in part because of the cooperation of the defence. From accounts in the media, the trial was fair and dignified. All because even lawyers on both sides are "one of us", people who have impeccable credentials of standing up for gender justice and human rights.
However, one dangerous argument put forward by the prosecution lawyer, who I personally look up to, is the foreign national argument. She argued that maximum punishment be given to Mahmood Farooqui, as the survivor is a foreigner hence particularly vulnerable.
To turn the complainant's foreignness as an aggravating factor is a disservice to hundreds of cases of egregious sexual violence that go unpunished every single day. It tends to trivialise those who have little or no access to justice, and no privileges of class, race, nationality and education. My feminism tells me to be sensitive to the hierarchies of caste and class and not appropriate their disadvantages for myself.
Redemption of national reputation argument for maximum punishment is most dangerous. It is not based on merits of the case but invoke some extra-legal considerations. This reminds me of the "collective conscience" argument used very often in terror cases. These questions are not to 'pillory' and 'target' a feminist lawyer but to remind her of certain principles.
Any argument made in the court is a public statement and not a private matter of client privilege. If it were so, then Ram Singh's lawyer's horrendous comments, about 'girls asking for rape' would also qualify as a lawyer simply defending his client. Neither are those comments acceptable nor can 'national reputation' argument be upheld.
And all those who have warned of keeping a watch on "what is written in the coming days" my only response is we will continue to write on gender, terror, caste, communalism under your ever watchful eyes.
The views expressed here are personal and do not necessarily reflect those of the organisation.