Updated: Jan 19
The concept of consent in Indian Rape Law, particularly as enunciated by Section 375 of the Indian Penal Code (IPC), has undergone manifest changes since its inception. An unambiguous conceptualisation has been adequately incorporated of what can be termed as un-consensual sexual intercourse, although with problems of its own. In recent times, from making space for much-needed reforms in the IPC to incorporating a progressive definition of consent, our courts have indeed come a long way. As momentous as these changes may be, courts time and again are seemingly adopting a male-centric approach to determine what exactly constitutes consent in sexual intercourse. Extraneous concerns often relating to the chastity of a woman and her inability to “adequately communicate her disapproval” have often resulted in courts refusing to grant convictions for sexual assault. This article explores the aforesaid legal developments and argues that irrespective of what the law says, it is these extraneous concerns that seem to drive the hand of law.
The concept of consent in Indian rape-law jurisprudence has forever been male-centric and is dangerously linked to female behaviour complying with moral standards on what may constitute a “chaste” woman. Time and again, courts have been pre-disposed towards yielding primacy to the evidence of physical violence as the defining feature of sexual assault, rather than the more important salience of the absence of mutual consent, on its own. Times wherein women have been found to display a “voyeuristic and promiscuous behaviour” or that they have been “habituated to sexual intercourse”, courts have hesitated to declare that sexual assault has taken place and instead find victim-shaming to be more convenient. Even judgements that make progressive steps in the right directions seem to have no bearing on future cases. For instance, the court in Rao Harnarain Singh v. State was tasked with deciding whether a lady, who upon the behest of her husband, “passively submitted” to the carnal desires of three men, had consented to the intercourse. Here, the court acknowledging the brutality of the act, remarked that the “submission of her body under the influence of fear or terror is not consent”. The court here gave an unambiguous definition as to what may constitute “passive submission” – whose precedential value seemingly has no bearing on subsequent judicial outcomes for courts in later times. Best illustrated in Tukaram v State of Maharashtra, the Supreme Court painted a starkly different picture when tasked with deciding the guilt of two policemen who had engaged in non-consensual intercourse with Mathura, a 16-year-old tribal woman.
Upon medical examination, it was concluded that Mathura bore no evidence of external injury and that her hymen revealed previous ruptures. The Court, concurring with the sessions judge stated that Mathura was "a shocking liar" whose testimony "is riddled with falsehood and improbabilities". Acknowledging that “no marks of injury were found on the person of the girl”, the court went on to state that “their absence goes a long way to indicate that the alleged intercourse was a peaceful affair and that the story of a stiff resistance having been put up by the girl is all false”. Dangerously, it went on to note that “because she was used to sex, she might have incited the cops to have intercourse with her”. Further, the Court observed that the concept of “passive resistance” as enunciated by the Rao Harnarian Singh judgement was redundant in examining the present case given the victim did not outrightly “cry out for help”, thereby consenting to the intercourse. Interestingly, what we may observe here is that apart from the two aforesaid criteria, namely the evidence of “readily apparent physical violence” and the “chaste” nature of the victim’s personality—that are dangerously paramount for Indian courts in granting rape convictions—it is suggested that the readily apparent evidence of stiff resistance is also unfortunately a necessary criterion.
The acquittal by the court resulted in significant public outcry and protests, eventually paving way for the passage of the Criminal Law (Amendment) Act 1983 (No. 43). This amendment fortunately introduced much-needed reforms into the IPC. Firstly, Section 375 of the IPC was amended to incorporate that the consent given by a victim “of unsoundness of mind” or subject to “intoxication” would not be legally valid. In addition, Section 114A was added to the Indian Evidence Act, 1872 which stated that when sexual intercourse has occurred, and the issue before the court is regarding the presence or absence of “consent” and the victim “states in her evidence before the Court that she did not consent”, it shall be presumed that she did not consent to the act, thereby shifting the burden of proof from the victim to the accused. Other provisions were also added to Section 376 of the IPC, one of which was to make custodial rape a separately punishable offence and the other was to prohibit the disclosure of the victims’ identity in rape trials.
Subsequently, after another abhorrent incident of sexual violence, more amendments were brought into the act upon the passage of the Criminal Amendment Act, 2013 (Nirbhaya Act). Oral intercourse was brought under the ambit of rape, and Section 375 of the IPC was amended to incorporate an unequivocal and clear-cut definition of consent. It was defined as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”. Even the absence of apparent physical resistance, that the court in Tukaram v State of Maharashtra held so crucial as to allow for the acquittal of the accused, was declared redundant by stating that “a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity”. As momentous as these changes may be, there are a few problems with it that are visibly apparent.
The previous amendments, and probably all the provisions in the Indian Penal Code penalizing sexual assault, is founded on two premises. One is that sexual violence is often inflicted by a stranger (man?), or a group of strangers, very often belonging to an impoverished/uneducated stratum in society. The other is that sexual violence must necessarily imply physical violence, in the form of physical wounds apparent on the victim’s (women?) body. Conceptualizing rape in this manner is problematic in several ways; Firstly, it is not necessarily the case that sexual violence is always perpetuated from men onto women, consequently, the law excludes a vast range of victims from seeking legal remedy and justice. Even if it is argued that predominantly it is men who perpetrate sexual violence on women and the opposite is negligible given the nature of power relations in the patriarchal ordering, a pertinent interjection would be—what about transgender people? It is no secret that the transgender community in India is ostracized and marginalized, so much so that that they have no means of survival other than seeking alms on the street or engaging in sex work. Their marginalization is further exacerbated by the fact that their symbolic ostracization from society implies they have no recourse to the law. Given the hostile conditions they live in, sexual assault, both by law enforcement and unruly clientele, is a common occurrence.
Furthermore, as it has been voiced on several occasions by activists, there is no place for the recognition of marital rape as a crime. As a matter of fact, marital rape is the only exception for statutory rape in the country, essentially implying that sexual intercourse with a minor invites no penalization as long as one is married to her. Interestingly, there lies no exception in the IPC for crimes of lesser nature against women either. Therefore, a man can be held guilty of outraging the modesty of his wife under Section 354 of the act, but if he sexually violates her instead, he will get off scot-free.
Although problematic, the Criminal Amendment Act, 2013 does mark a step in the right direction. Cases in the past placed great emphasis regarding the victim’s resistance in the form of evidence in rape trials, that the amendments seek to change. It does say that consent must be unequivocal and that a “no” can be expressed orally or even through verbal gestures. They were lauded by the public and termed as a “harbinger of change” even, for bringing such progressive changes. However, a slew of recent judgements proves that these amendments are merely words on paper, and it may take more than that to change the mindset of judges adjudicating rape trials. Take the Mahmood Farooqui vs State judgement for instance. Mahmood Farooqui, a popular filmmaker was accused of performing oral sex on the victim. The victim in her statement to the Court revealed that while Farooqui attempted to disrobe her, she persistently kept pulling her underwear down. Although she aired her hesitance regarding pursuing the act any further, Farooqui, through his sheer strength, forced himself on her and in the end, the victim had to submit to Farooqui’s demands. The accused defended himself by stating that he operated within the presumption that the victim was consenting to the act with her acquiescence. The fact that one can assume from obvious non-verbal cues by the victim’s act of constantly pulling down her underwear and voicing her apprehension that she consented to the act goes beyond one’s assumption.
However, the judge, in this case, declared that consent was “presumed” and that it was “difficult to decipher whether little or no resistance and a feeble ‘no’, was a denial of consent”. The court doubted the veracity of the victim’s narration of events, and if at all it did take place, the accused was in no place to understand that consent was absent. The court further reiterated that since the two parties were not “conservative” and in a “prohibited” relationship, a general principle could not be laid down. But alas, a general rule had indeed been laid down in the 2013 Amendment of IPC. Now, Section 375 coherently informed us that consent must be unequivocal during a sexual act, that it could be rescinded at any stage, it may be verbal or non-verbal, and the absence of which would amount to rape.
The Mahmood Farooqui case was not just a one-off incident. Irrespective of what the statute informs us, courts refuse to grant convictions in rape trials by routinely making statements like the victim “betrayed somewhat submissive and consensual disposition” or that they displayed “voyeuristic and promiscuous behaviour”. These extraneous concerns have no place either in a reasonable mind nor in the IPC. Their routine invocation by the law in order to carve out an exception and enable the subsequent acquittal of the accused flies in the face of justice. Furthermore, although this article has demonstrated that there are still sufficient problems regarding even purportedly reformatory amendments to section 375 of the IPC, interpretation accorded by judges grounded on completely antithetical values seem to act counterproductive to what was perhaps the intention behind these amendments. Strictly going by what the statute informs us, judgements that we see in rape-trials today would be completely antithetical to the purpose they seek to serve. Then the pertinent interjection would be that it is not statutes that need reforming, but rather the anachronistic mindset of these judges that seek to interpret them.
 Vikas Garg and Ors v. State of Haryana [Cr.M.No.23962 of 2017; Cr.M.No.26910-11 of 2017; Cr.M.No.26930 of 2017].  AIR 1958 P H 123.  Ibid.  1979 AIR 185  The case gained notoriety in popular discourse as the “Mathura Rape Case”. See professor Upendra Baxi’s famous open-letter chastising the judiciary upon the verdict here: Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf (pldindia.org).  Ibid. Criminal Law (Amendment) Act, 1983 (Act no. X of 1983).  The Indian Evidence Act, 1872 (Act 1 of 1872), s 114 A.  Criminal Amendment Act, 2013 (Act No. 13 of 2013).  Ibid.  Ibid.  MANU/DE/2901/2017.  Ibid.