The recent judgment of the Delhi High Court in the case of Mahmood Farooqui v. State (Govt of NCT of Delhi) is a stark illustration of the law’s resistance to change. The stickiness of law embedded within the dominant social, cultural and sexual norms often defies the logic and objective of legal reforms, leaving us with definitely more law, but hardly more freedom or justice. In 2013, significant amendments were made to the rape law provisions in the Indian Penal Code, 1860 (IPC), including the introduction of the definition of consent in rape cases at the behest of feminists. But the high court, with its anti-feminist interpretation, has completely negated the objective and intent of the definition of sexual consent.
In overruling the trial court decision delivered last year (which radically recognised rape as loss of control over one’s sexuality), the high court has yet again established the rigidity and fixity of the conservative legal framework. What we are left with are the same old stereotypes of an ideal rape victim, real rape, real resistance and true consent.
The 2013 amendments defined consent as “an unequivocal voluntary agreement when a woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.” Absence of physical resistance, it is clarified, would not by itself amount to consent. The objective behind the incorporation of this definition in rape law is to make woman the subject of law. Without the woman’s communication of “willingness to participate”, the “unequivocal voluntary agreement” which constitutes consent between sexual partners cannot be effected.
This definition is placed alongside the expanded meaning of rape. The 2013 amendments also introduced clause seventhly in Section 375 which states that a man would be said to have committed rape, if the woman “is unable to communicate consent.”
In its narrow conception, this may refer to situations when one is not able to communicate due to some physical or mental infirmity. But broadly construed, this can also include situations where the woman is not given the space to communicate and be heard and therefore she is unable to communicate. The latter reading of the clause strengthens the definition of consent. When read with the requirement of “unequivocal voluntary agreement”, it mandates that sexual acts are not performed in callous disregard of the woman’s desire. In other words, it would require that in sexual interactions, the woman is assured the space and time of forming and communicating consent for specific sexual acts.
Within this understanding, the burden of reaching the “unequivocal voluntary agreement” is equally shared by the sexual partners. In as much as the woman is supposed to express willingness to participate in the act, the man is also required to be responsible and sincere in understanding and appreciating what is being communicated. Far from appreciating this radical rupture in understanding consensual sexuality, the Farooqui verdict comes nowhere close to imagining freedom for the woman in sexual interactions. Instead, the feminist shift in the jurisprudence of consent stands undone in multiple ways.
Resisting feminist reforms, the verdict displaces the woman and reinstitutes the man as the subject of law. At the heart of the court’s reasoning was not what the woman said, but what the man understood: “even if the act was not with her consent, she actually communicated something which was taken as a consent by the appellant.” The decision thus marked an erasure of the woman’s voice in matters concerning her sexuality. Even the questions raised by the court were framed from the point of view of the man: “whether the appellant mistakenly accepted the moves of the prosecutrix as consent; whether the feelings of the prosecutrix could be effectively communicated to the appellant and whether mistaking all this for consent by the appellant is genuine.”
Further, according to the court, “the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant… At what point of time, during the act, did she not give the consent for the same, thus, remains unknown and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.” In creating the category of “assumed consent”, the verdict re-inscribes male subjectivity in the domain of sexual consent. It reinforces the male privilege to assume consent based on dominant perceptions of the woman’s behaviour and reactions. And the misogynist myths of popular culture — cheekhegi, chillageyi par haseena maan jayegi — constitutive of the “assumed consent” remain uncontested. Aren’t such assumptions about consent nothing but a reckless disregard of the other?
In its shocking endorsement of the misogynistic and sexist idea that “no” may mean a “yes”, the court completely failed to appreciate the import of the “affirmative model” of consent. Describing sexual interactions as “act of passion, actuated by libido”, the court in a regressive and reductive move almost characterises sexuality as a racy affair of confused desires which becomes all the more difficult to grasp on account of differences in gender relations. In this framework, a disproportionate burden is placed on women (particularly, “intellectually/ academically proficient” women) to be loud (not feeble), assertive (not hesitant) and display “real resistance” (not feeble disinclination). But it is never asked why and how the man is left to make assumptions? Why is he never required to be certain, clear and sure about his belief and understanding of the woman’s verbal and non-verbal communications? Why is the man not expected to ask, understand, hear (not assume) and respect consent?
Latika Vashist teaches criminal law at the Indian Law Institute .