The last few days have been rather confusing for me. I am trying to come to grips with two concepts – rape and absolutism, rather absolutists. This confusion has come about after reading the arguments on the acquittal by the Delhi High Court of Mahmood Farooqui the Director of Peepli Live from charges of rape. This judgment came close on the heels of a Judgment of the Punjab & Haryana High Court where the Court released on bail 3 students, once again, accused of rape. This case too has had a lot of opinion generated.
The absolutely inhuman Nirbhaya crime resulted in an amendment to the law relating to what constitutes rape. The law became wider. The ambit of rape was modernized and widened. The concept of consent has been added.
Despite the amendment, feminists, lawyers and activists operating in the women’s rights sphere wanted more. Specifically, rape within marriage. The essential characteristic, generally speaking and painting them all with one broad brush, of such feminists, lawyers and activists, is that all of them are absolutists.
An absolutist is one who believes that any theory holding that values, principles, etc., is absolute and not relative, dependent, or changeable. This means that they refuse to accept any other view. Therefore, for such absolutists, there cannot be any leeway, no mitigating circumstances. A rape is a rape is a rape. I must point out that in almost all cases, these absolutists do not hear the defense or weigh the evidence that the defense produces in cases of rape. In other words the absolutists are merely armchair critics. Of course, in a small number of cases the absolutists happen to be the prosecuting lawyers for the women. This again automatically places them in an absolutist position. The rapist is undoubtedly guilty and should be put away. No ifs, no buts. This is unfortunately their view. If they had their way, there would be no necessity for a trial.
There is a small problem for the absolutists. In trials there is a Judge. It goes without saying that absolutists regard Judges who do not pronounce alleged rapists guilty as misogynists or feudal or possessing a typically male mindset or worse. You have to realize that Judges are not, and cannot, thankfully, be absolutists. They have to weigh the evidence, the arguments and then apply the law. So, often the accused are not punished to the extent the absolutists would like. This is thankfully what justice is.
The poor clichéd Lady Justice you see with the scales upon which she measures the strengths of a case's support and opposition, the blindfold symbolizing impartiality and finally the sword symbolizing that Justice is swift and final, is really what it is all about. Of course in India the sword is deceptive as justice is neither swift nor final.
This conflict between absolutists and Justice is causing huge conflict. To add to the problem is the fact that Judges cannot appear on TV or for that matter write in publications why they took a particular decision. That reasoning is contained in the Judgment. Obviously! But, the trend now is that the absolutists regard such reasoning as a function of the Judges mindset which I have written about in the preceding paragraph.
I really do not know how I would have decided these two recent cases. Unfortunately there is a lot of grey area in both. The behavior of the protagonists is rather mixed and drawing lines seems most difficult.
In the Punjab & Haryana High Court Judgment, which has resulted in the 3 boys being granted bail, the problem started with the girl, as the cliché goes, taking selfies of herself, naked and sending them to the boys. Facebook was also involved. This snowballed. The Judges have been very critical of this shallow, irresponsible behavior. This Judgment has been criticized as the absolutists feel, firstly, that the boys should never have been granted bail, and secondly, that by expressing an opinion that this rape was somehow self-inflicted on account of deviant behavior by all parties, the Judges have become moral police. Thus the old mindset and so on and so forth.
The Mahmood Farooqui case is even stranger. First there is a peculiar cast of characters. Mahmood Farooqui being an alcoholic, suffering from a bipolar disorder. Then you have some gents from the extreme outer fringes of “folk theatre”/TV/Journalists who are all well aware of Mahmood Farooqui’s problems. To round of this motley crew you have a young female Fulbright Scholar. The Judges after sifting thru the evidence reach the conclusion that it is questionable if the rape did take place at all! This has outraged the absolutists.
I am confused as to how these two diametrically opposite positions of absolutism and Justice can have a middle path. To further aggravate the masses we have these shouting matches on TV, where once again you pitch people whose points of view are poles apart and are incapable of reaching a middle ground. This needlessly agitates us and further lowers our little faith in the Judiciary and criminal justice system. This I believe is most disturbing.