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CONSENT: A MISGUIDED TOOL FOR THE ACCUSED.

By Nayan Katariya

It’s not Consent, if you make me afraid to say NO. 

– Anonymous

Consent means an action or series of actions done deliberately out of free will and without any pressure or force. It is a free act of mind. Though the word ‘consent’ is nowhere defined in the Indian Penal Code, 1860 but it plays a crucial role in avoiding the criminal responsibility of the accused. Section 87 and 91 of IPC define consent as defense. Section 87 defines a situation where there is no intention to cause death or grievous hurt but a mere harm caused to the deceased with his prior consent which prevents the accused from any criminal liability.

While Section 91 is in itself is an exception to the exceptions of section 87, 88 and 89. Here, though the deceased has given consent to the harm but it will not exempt the liability of the accused because the harm done is in itself an independent offence e.g. miscarriage. Here the scope of consent is narrow as it can be possibly implied from the facts of the case. But when we talk about consent in context of sexual offences against women, its scope becomes broader. It plays a major role in establishing the liability of the accused. The 2013 Amendment to Criminal Law (After Nirbhaya Gang Rape Case) brought a new definition of Consent in order to protect the modesty of the Women. Here 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 when we see the judgements like Tukaram v. State of Maharashtra (pre 2013 Amendment) and Mahmood Farooqui v. State of NCT of Delhi (post 2013 Amendment) it seems that Court deviated from its path of protecting the modesty and dignity of women. It seems that Court moulded the essence of consent (for Women) in the favour of the accused. In Mahmood Farooqui v. State of NCT of Delhi, Justice Ashutosh Kumar holds that in the modern world where equality is the “buzzword” and where both men and women are “initiators” of sexual acts, consent should not be mere hesitation or reluctance, but a clear and unambiguous “no”. In short, there is no room for a feeble “no”. Here, Court held that women must make their “unwillingness known to the accused.  But when we go through the explanation 2 of section 375 which talks about “unequivocal voluntary agreement” there is no space for any feebleness. Like a ‘NO’ means ‘NO’, so there is no place for any reluctance and feebleness. Here Court didn’t upholds the principles and application of law as introduced in 2013, for crimes specific to sexual assault, including the new provision on consent, instead Court molded it in favour of the accused. 

In Tukaram v. State of Maharashtra, the Court gave another faulty decision by holding that absence of injuries implies consent. Apex Court also rejected the reasoning of High Court that there is difference between consent and passive submission. The Court also took the note that the woman was not virgin and had been sexually active before and that it was more likely than not that penetration had taken place. Why the sexual history of the women should be considered for establishing that she consented for sexual intercourse if there is no injuries even after her resistance. If a woman doesn’t want to indulge in such activity, why should she has to express a clear cut NO. Such perverse judgments prove that a significant change in the interpretations of Indian rape laws is an urgent imperative. The benefit of doubt regarding consent should be in favour of the women as it was included in the Criminal Law in order to protect her modesty.

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