The term rape in most of the areas inclines over a very crucial display:
consent. The idea of consent is not a theological concept it's a genealogical
concept. The victim is generally interrogated asking her if she had consented to
the conduct of the accused. It seems simple but just existence and absence by
the victim is not enough, the circumstance of the situation and knowing the
entire story is equally important.
Even though we have a definition of consent in IPC. There are scenarios where we
have seen the courts rewriting the definition which is very unfair to the
victim. As we see in the case of Mahmood Farooqui vs State of NCT of Delhi the
courts have highlighting the fact that they had an history of intimacy they were
attracted to each other.
The court pointed out that the victim was 'intellectually well versed' but
nowhere in the definition of consent we have read that these factors are
important. The court is ignoring the power dynamic between the two and
scrutinizing the victim. The court assumes her consent 'A feeble no may mean a
yes' specially 'when parties are known to each other' which is very shocking.
Different people react differently some people react by freezing in such
situations will that be considered as consent too as there was no resistance.
According to me no one should stand in judgement on how one behaves when they
are being sexually assaulted. Even after her mentioning in the mail 'it went too
far' the court is assuming that she enjoyed it at a part and the entire
judgement revolved around the victim's character, rather than focusing on what
she says the court pays attention on Mahmood's understanding.
In IPC consent is 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". But in this
case what the woman has said is not taken into consideration. Nowhere does it
say a feeble no can imply to consent.
It can be distinctly attributed after going through the section the law has sent
an eloquent merit for sexual consent, there is no need for examination of
consent based on personal feelings and opinion in the mind of the accused. In
the explanation there is only mention of what the victim expresses and not what
the accuse assumes and interprets. The merits that are set by the legislations
are more objective, we can see a constant pattern of victim blaming and
scrutinizing the victim's character when it comes to rape cases.
In the case of Tukaram vs State of Maharashtra the judgement of high
court was overruled by supreme court saying it is not rape but sex and following
reasoning were given: there is no injury, her following Ganpat and that she was
habitual to sex. The high court called her non resisting as passive submission
but it is not equivalent to consent neither does her past and how many people
she has been sleeping with should have mattered the court is ignoring the fact
that why was she asked to wait?
Why were the police intoxicated? Why were the lights off? Why and how a man is
left to make assumptions? In this country where people believe that rape is
consensual inside Haryana's rape culture. Where politicians have to say that
"rapes happen because men and women interact freely" (mamta), "sugar attracts
ants" (sp's Alu azmi says women were molested because what they wore).
The assumption of the actual meaning of the term consent is interpreted
differently by people. Even though we believe there are no blurred lines when it
comes it comes to consent that is certainly not the true. We have seen the
difference of interpretation of the term consent in different courts be it trial
court, high court or supreme court. The same facts can be considered differently
and consent is assumed even after a clear cut vital demonstration of lack of
We can encounter where the courts have been making categories between someone
who is from urban, rural, well versed or intellectual. Where some people think
its easy to misuse the laws now, I feel its difficult for the victim to prove
that she did not consent, In the case of Mahmood, Suranya Aiyer (lawyer &
writer) had to say that "it was a lack of judgement on the part of Mahmood while
forgetting to realise that it was a disappointing judgement after the 2013
criminal law amendment act.
The act was amended after the heinous Delhi rape case. This amendment led to the
need of Pino-vaginal sex for rape to go away and accept others as well. This is
the reason Mahmood's case was tried under section 375. Even after changes in the
amendment and including a definition of consent it has been read and interpreted
incorrectly in cases of rape.
The Act ignored the victim's sexual history and assumed the absence of consent,
providing an objective criteria for evaluating consent in the victim's favour.
Such irrational rulings demonstrate the urgent need for a significant shift in
the understanding of Indian rape laws.