Although our judicial system has little to no understanding of sexual consent, there is some reason to believe things are taking a turn for the better.
After allegations were made against Aziz Ansari for aggressive sexual coercion, the internet was divided over whether the act in question was a sexual assault or just a bad date. It exposed those internet users who, while on the one hand claimed to be feminists, didn’t shy away from slut-shaming Ansari’s date in the blink of an eye.
On the whole, what India understands of consent was revealed, i.e – not much.
There has always been a conflict between the laws of India and sexuality, gender and consent. Our lawmakers have had little to no understanding of consent, which has resulted in a filmmaker like Mahmood Farooqui being acquitted of rape charges in September last year.
The Delhi High Court felt the woman’s ‘feeble’ objection to Farooqui’s sexual advances were as good as a ‘yes’ and therefore had doubts about whether ‘rape’ had actually taken place.
In the same month, the Punjab and Haryana High Court released three men accused of rape because of the victim’s ‘casual relationship with friends, acquaintances, adventurism and experimentation in sexual encounters’. It deemed the issue of the woman’s consent as immaterial.
Another example is Kerala High Court nullifying Hadiya’s marriage to a Muslim man and handing her, a 24-year-old adult, to the protective custody of her parents.
It was only after the Supreme Court’s intervention that Hadiya was able to break away from the confines of her home and go back to college.
Although this gives a clear picture of what the definition of consent is in our judicial system, there is some reason to believe that things are taking a turn for the better.
1) On Saturday, while pronouncing a five-year jail term to a man for sexually assaulting a nine-year-old girl at a crowded market in north Delhi, a Delhi High Court judge said that a woman’s body is her own and it is she who has an exclusive right over it. Others are prohibited to touch her body, without her consent, the judge added.
“Such perverts get a sexual kick by assaulting women, oblivious to the rights of privacy of women and the female child,” NDTV quoted Additional Sessions Judge Seema Maini as saying. No one can touch a woman without her consent, she asserted.
2) In September last year, the Bombay High Court thwarted a rape convict’s attempt at victim-shaming, who tried to justify his crime by saying that the woman had ‘two boyfriends with whom she had sexual relations’. Responding to the convict’s outrageous comment, Justice A M Badar said, “A woman might be of easy virtue. But that does not mean that all and sundry can take advantage of this fact. She has a right to say no,” reports The Indian Express.
According to the publication, Justice Badar goes on to say that even if one assumed that the woman had two boyfriends and had sexual relations with them, it would still not empower or authorise the man to commit penetrative sexual assault on her.
3) In February last year, three men from Pune accused of the -, kidnapping and abduction of a 24-year-old woman, filed bail applications. Counsel for the accused argued that since the woman was intoxicated, consent was out of the question and that she must have ‘cooked up the story of being gang-raped’.
“Young people who are financially independent, they often have free interaction. They drink together and sometimes also take sexual liberty and intercourse is consensual,” LiveLaw.in quoted him as saying.
But the Bombay High Court was in no mood for this ludicrous reasoning. It observed, “In the case of rape, intoxication cannot be an excuse. If a girl is intoxicated, it means mentally she is not capable to give a free and conscious consent. In a case of rape, when a woman says “No” for sexual intercourse, it means she is not willing; similarly when she says “Yes”, it should be a free and conscious “Yes”. Not every “Yes” is covered under the valid consent.”
This observation by Justice Mridula Bhatkar has been by far the closest to the real definition of consent.
4) In October 2017, the Delhi High Court rejected a rape convict’s defence that the victim’s silence about the incident meant that the sexual relations between them were consensual. According to News18, Justice Sangita Dhingra Sehgal observed, “The defence taken by the accused that the prosecutrix (victim) had consensual sexual relations with him which is pointed out from her silence about the incident, holds no ground, as mere silence cannot be taken as proof of consensual sexual relations as she has also stated that she was being threatened by the accused. Thus, any act of sexual intercourse in the absence of consent would amount to an act of rape.”
Going by how consent is an alien concept in the country, these rulings become extremely important and so does the need to highlight them.
We believe these small steps will be the building blocks to achieve that.