This article is written by Aparna Jayakumar, from Guru Gobind Singh Indraprastha University. This article examines how rape law’s conception of consent establishes an objective standard for defining rape survivors’ subjective experiences.
“There are no blurred lines when it comes to consent”.
– United Nations Women
Rape’s sociology, psychology, and biology have all been extensively discussed worldwide. The law prohibiting it has been extensively written and debated too. Many efforts have been made around the world to successfully prosecute and ultimately deter rapes. And, as a result of these historical, political, social, scientific, and legal processes, the definition of the word “rape” has evolved significantly. Rape was not seen through the narrow lens of land in ancient times, so it lacked the modern elements that make it a crime. The rape was seen as a crime against the person who was her legal guardian, rather than a crime just against the woman’s body.
Despite the fact that rape is primarily a female social experience, the crime of rape is nevertheless interpreted and described in law from a male social perspective. Since penetration is central to the male concept of sex, the offense of rape also focuses on it, regardless of its lack of connection to female sexuality, desire, or violation.
In classical liberal theory, “consent” refers to an expression of autonomy and free will by competent and rational people who are free from coercion and pressure. Postmodern feminists argue that the classical liberal view of “consent” fails to represent women’s choices in patriarchal societies because it ‘overplays’ female autonomy and ignores the power gap between men and women, especially in the normative sense of social structures that exclude female experiences and exclude any possibility of women exercising free choice. This article analyses the current standing of Indian rape laws with respect to ‘Consent’.
Consent under the Indian Penal Code (IPC)
Consent is difficult to describe but simple to comprehend. Any attempt to define consent, particularly in rape laws, risks destroying the entire edifice of consent-based offenses. Consent, on the other hand, is specified in Section 375 of the IPC.
Consent must be “unequivocal,” “voluntary,” and “willing,” according to the definition, and the will must be “communicated.” As a result, the concept of consent raises a number of important questions, such as whether consent entails willing agreement; whether there is some relationship between the words “shall” and “consent; and whether consent entails voluntary agreement.
The application of relevant sections of the IPC that define consent in the context of rape reveals that seemingly victim-friendly definitions of rape have proven insufficient in the Indian socio-cultural context. Section 90 of the Code defines consent broadly and negatively, whereas Section 375 defines it specifically for the offense of rape. In cases of rape, both sections must be read together, with the latter specific provision superseding the former according to established statutory interpretation rules.
- Section 90 states that “Consent is not consent in the sense intended by any section of this Code if it is given by a person under fear of injury or under a misconception of fact, and the person doing the act knows or has reason to believe, that the consent was given as a result of such fear or misunderstanding.”
- Explanation 2 of Section 375 states that, “Consent means an unequivocal voluntary agreement when the woman communicates her willingness to participate in the specific sexual act via words, gestures, or any other form of verbal or nonverbal communication.
However, provided that a woman who does not physically resist the act of penetration shall not be regarded as consenting to the sexual activity solely on the basis of that fact.”
Consent – an unequivocal agreement
Explanation 2 to Section 375 of the Indian Penal Code describes consent as “an unequivocal voluntary agreement when the woman communicates a willingness to engage in the specific sexual act through words, gestures, or any other means of verbal or nonverbal communication.“
The Delhi High Court’s acquittal of M.F. Farooqui, who had been found guilty of raping an American research scholar, has generated a critique of judicial reasoning on consent, which is not derived from the 2013 amendment. The amendment defines ‘consent’ as an unequivocal agreement to engage in a specific sexual act; it also clarifies that the absence of resistance does not imply consent.
In this case, judicial reasoning flips the concept of “affirmative consent” on its head. It does so by accepting the woman’s testimony as “sterling,” but doubting her because informed women are held to have a different level of consent.
The court held that if the woman is conservative (i.e., she is not attracted to a married man), her level of consent would be different, and secondly, the court held that when the “parties are in a forbidden relationship”, “little or no opposition” combined with a “feeble ‘no'” does not constitute “denial of consent.”
Tukaram v. State of Maharashtra
Mathura was a young girl (prosecutrix) who lived with her brother (Gama) after her parents died when she was a teenager. Mathura worked as a laborer at Nunshi’s home, and during her time there, she met the son of Nunshi’s sister (Ashok) and began a sexual relationship with him. Following that, they decided to marry. On March 26, 1972, her brother Gama filed a police report alleging that Nunshi, her husband Laxman, and Ashok had kidnapped Mathura. At 10:30 p.m, Head Constable Baburao (Appellant No.1) recorded the statements. He took down Mathura’s and Ashok’s claims. Baburao then asked everyone to leave, instructing Gama to bring a copy pertaining to the birth date of Mathura. She was told to stay at the police station only, by Appellant No. 1. He then shut the doors and turned off the lights after everybody had left. After that, he dragged Mathura into the bathroom and raped her. Following him, appellant no.2 fondled her private parts and attempted to rape her but was unsuccessful due to his intoxication. Nunshi, Gama, and Ashok, who was waiting for Mathura outside the police station, began to doubt him. Mathura told them about the incident. Following that, a report was filed, and Mathura was examined by Dr. Kamal Shastrakar on March 27, 1972, who discovered no injuries on her body. Even on the pubic hair, the examiner did not find any signs of semen. The semen, however, was discovered on the girl’s clothing.
According to the Supreme Court, the essence of the victim’s consent had to be decided by the circumstances, and the circumstances clearly showed that the consent was not “passive.” There was no harm or injury on the girl’s body, and it was impossible to conclude that she had been subjected to or was under some fear or compulsion that would justify a conclusion of “passive submission.” The accused’s appeal against the high court’s judgment was accepted, and the Supreme Court overturned the High Court’s decision, as well as the appellants’ conviction order. The Supreme Court upheld the Session Judge’s opinion, ruling that this was a case of voluntary sexual intercourse.
The court also stated that because there were “no signs of injury” on Mathura’s body, there was “no struggle” on her part, and she “consented to sex” because she did not “raise an alarm” for help. Furthermore, if Mathura wanted to resist, she would be helpless in the face of two well-built, powerful constables, making “marks of injury” difficult to carve onto her body. It was also noted that Mathura’s failure to identify the precise appellant who had raped her worked against her because the Court claimed that if she could contradict her initial testimony by changing the accused from Tukaram to Ganpat, she could have lied about everything else as well.
Mahmood Farooqui v. State (Govt. of NCT of Delhi)
The accused was accused of forcing oral sex on the prosecutrix, an American research scholar who had visited him many times and had become acquainted with him. On September 25, 2017, the Delhi High Court acquitted the accused of his earlier conviction for rape under Section 376 of the Indian Penal Code, effectively halting all progress made in the case. A woman’s “yes” would mean “yes” and her “no” would mean “no” for any sexual proposition under the affirmative model of consent. Furthermore, this model assumes that the woman has not consented to any sexual activity until she is explicitly questioned and says “yes”. After a woman says no, however, any subsequent act should be deemed rape.
In the Farooqui case, the court ruled that:
- The standard and widely accepted model is an “affirmative model,” which states that “yes” means “yes” and “no” means “no.” There will be some difficulties in universal adoption of the above model of consent because, in some situations, there may be an affirmative consent or a positive rejection, but it might remain underlying/dormant, causing doubt in the other person’s mind.
- An analysis of the judgment shows that the Court’s understanding of consent goes against the positive paradigm of consent as it tries to explain why the prosecutrix’s “no” was really a “yes,” contradicting itself in the process. As a result, the Court placed the burden of proof on the prosecutrix to show that she said “no,” rather than on the accused to show that the woman said “yes.”
- “Consent does not simply imply hesitation, resistance, or a resounding ‘No’ to any sexual advances; it must be expressed in plain terms.” (reiterated in this case)
The court, however, failed to recognize that the 2013 Amendments do not allow judges to apply their own principles of consent or to assume consent based on the parties’ relationship or educational status. Rather, it necessitates the use of the affirmative consent model. Finally, by highlighting the offender, the judgment defeated the aim of a victim-friendly clause, subjugated female agency, and blurred the line between consensual and non-consensual sexual conduct, setting an alarming precedent for the future.
Age of consent
India introduced the Protection of Children from Sexual Offenses (POCSO) Act in 2012, which included a detailed and graded definition of sexual harassment against children for the first time in the country’s legislation. The Act distinguishes a variety of penetrative and non-penetrative sexual assaults, as well as their penalties. The POCSO Act of 2012 contains important provisions that address various types of child sexual exploitation.
According to Section 2(d) of the Act, a child is described as a person under the age of eighteen. Two aspects of the act are worth mentioning here:
- This act, is gender-neutral, as it seeks to safeguard both genders equally, without discrimination.
- In addition, the age at which an individual becomes incompetent to consent has been set at eighteen.
All the sexual acts defined in various POCSO sections are considered infringing only if a “victim” is under the age of 18. It is considered that a person under the age of 18 is incapable of consenting to a sexual act. Therefore it is still punishable, even if the act is consensual. The POCSO Act also increased the age of consent for sexual activity from 16 years to 18 years for children of all genders.
Independent Thought v. Union of India
In this case, the petitioner was Independent Thought, a national human rights organization established in 2009. The petitioner filed a writ petition under Article 32 in the public interest, arguing that Exception 2 to Section 375 of the IPC is both arbitrary and discriminatory against a girl child.
According to the petitioner, the Criminal Law (Amendment) Act, 2013 has set the age of consent for sexual intercourse at 18, implying that someone having sexual intercourse with a girl child under the age of 18 is committing rape, even though the sexual activity was with her consent. However, under Exception 2 to Section 375 of the IPC, if a girl child between the ages of 15 and 18 is married, her husband is free to engage in non-consensual sexual intercourse with her solely because she is his wife and for no other purpose. The right to bodily integrity and to refuse sexual intercourse with her husband has been statutorily stripped away, and non-consensual sexual intercourse with her husband is not an offense under the IPC.
The petitioner argued that this type of law achieves nothing because it has an unclear objective. Just because a girl between the ages of 15 and 18 is married does not change the fact that she is still a child who is not physically or mentally ready to have sexual or conjugal relations with a man.
While discussing all the relevant matters in the case, the Division Bench gave the following judgment:
- Without any reasonable nexus, exception 2 discriminates between a married girl child and an unmarried girl child. It is a violation of a girl child’s sexual integrity, dignity, and reproductive choice.
- The age of consent under exception 2 is unreasonable, and it violates the girl child’s right, as the parliament has increased the age of giving consent from 16 to 18 years.
Current standing of Indian rape laws
Since the Indian Penal Code, 1860 (‘IPC’), and the Indian Evidence Act, 1872 (‘IEA’) were passed, ‘rape laws,’ a crude but convenient term for laws dealing with rape, have been revised twice. The first amendment was enacted in 1983, following the Supreme Court’s decision in Tukaram v. State of Maharashtra, also known as the Mathura Rape Case. It has been noted that the Judiciary, as the third pillar of the Constitution, has played an important role in determining the appropriate remedy in rape cases. The judiciary has attempted to strike a balance and equilibrium in society at times by broad interpretation of provisions of various legislation and the Constitution, and at other times by setting down landmark decisions where there are no clear laws.
The judiciary has attempted to bridge the gap between a rapidly-shifting world and rigid rules (because of the long and time-consuming procedure of enacting laws by legislature, it’s not easy to amend these laws with the fast-changing society). Nirbhaya’s case has once again highlighted the inadequacy and lack of proper enforcement of laws; however, the Anti-rape Bill- Criminal Law (Amendment) Bill, 2013 has been passed. Rape survivor laws have only been enforced following much public outcry or by judicial interference. This Amendment Bill was also introduced following the loss of Nirbhaya and widespread protests. The judge in Nishan Singh’s case correctly observed that the Court can only lay down the rules, but society must play an important role in their execution.
The rise in the number of rape cases in India in the last few years has bought major improvements in the section but there are still quite a few existing loopholes that need to be addressed. An effort should be made to root out the problems that exist in our Criminal Justice System so that offenders are brought to justice. It is often difficult for a victim to convey the absence of agreement, it is a practical need that Section 375 of the Indian Penal Code be read with a high level of objectivity. Because a victim may submit to an accused’s sexual advances out of fear of violence, her mere compliance cannot be construed as consent. The purpose of the 2013 Criminal Law (Amendment) Act, which was passed to widen the scope of rape and increase the severity of the punishment, is being undermined by judgments like Mahmood Farooqui’s.
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