No, Your Lordships! Even A Feeble ‘No’ Does Not Mean A ‘Yes’

45 years ago, a young girl named Mathura was raped by two policemen. While acquitting the accused, the sessions judge called Mathura “a shocking liar”, whose testimony “is riddled with falsehood and improbabilities”. It was also remarked by the sessions judge that “Mathura is habituated to sexual intercourse”. When the matter reached the Supreme Court (Tukaram v. State of Maharashtra/ Mathura rape case, AIR 1979 SC 185), it observed 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”. The apex court refused to appreciate the testimony of Mathura and held that:

“… her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as “passive submission”.”

Holding that the circumstantial evidence do not reasonably imply towards the guilt of the accused, the apex court concluded that the sexual intercourse in question did not amount to rape and therefore, no offence is brought home to the accused. The court had also gone to question the character of the victim by stating:

“If the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram?”

The court further held that under Section 375, only “fear of death or hurt” could vitiate consent for sexual intercourse. The character assassination of the victim, in which the sessions judge was involved, was carried forward by the apex court.

The judgment invited severe criticisms. The Supreme Court’s judgment was criticised by four eminent law teachers – Upendra Baxi, Vasudha Dhagamdar, Raghunath Kelkar, and Lotika Sarkar – who posed an open letter to the Supreme Court. Nation-wide protests were organised by various women’s groups and forums. The public opinion pressured the ruling class of the day, and accordingly, the Criminal Law Amendment Act, 1983, was passed which included situation of “aggravated rape” under section 376A to E. Further, the India Evidence Act, 1872, was also amended by the Criminal Law Amendment Act, 1983, and section 114A was incorporated, which imposed the burden of proving “consent” upon the accused in the aforesaid cases of aggravated rape. This was an exception of the general rule of presumption of innocence of the accused.

The Mathura rape judgment was a national shame. The judgment created debates around the issue of consent, sexual intercourse and rape. Since the Mathura judgment, the courts in india, including the Supreme Court, have passed several judgments, which tried to remove the stain of injustice that was committed in Mathura’s case. A recent judgment delivered by a 3-judge bench headed by Justice Dipak Misra (as His Lordship then was) in Pawan Kumar vs. State of HP, (2017) 7 SCC 780, summarized aptly the essence of a woman’s ‘choice’, where it was observed:

“A woman has her own space as a man has… One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject.”

However, two recent pronouncements by two different high courts of the country make us to think whether we are back to the Mathura era. These two pronouncements are retrograde to the progressive approach of the Indian judiciary.

The first case is an order of the Punjab & Haryana High Court, whereby the high court has suspended the sentence awarded to three law students from Jindal Global Law School, Sonipat, who were convicted for blackmailing and gang-raping a student of the same university for about two years. In this case, the Additional District and Sessions Court had, in March 2017, awarded 20 years’ of imprisonment to the main accused, Hardik Sikri, and his friend Karan Chhabra. The third accused, Vikas Garg, was handed a 7-year jail term. The high court held that:

 “The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.”

The high court called the victim’s behaviour as a “perverse streak”. The court doubted the victim’s testimony and used it as “compelling reasons” to rule in favour of the accused, holding that:

“The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents. We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind.”

The second case is a judgment by the Delhi High Court, whereby it set aside the order of a trial court convicting movie director, Mahmood Farooqui, of the charge of rape. The director was sentenced to 7-year imprisonment by a special fast track court after being found guilty of committing forceful oral sex upon a foreign national in 2015. The high court applied its flawed understanding of ‘consent’ to hold that:

“The history of intimacy and the unabashed liking/attraction of the prosecutrix towards the appellant may have given an impression to the appellant of consent… Absence of any real resistance of any kind re-affirms the willingness. An expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape…

 In the present case, 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.”

The court then tried to explain its flawed reasoning by stating that:

 “Instances of woman behavior are not unknown that a feeble ‘no’ may mean a ‘yes’.  If the parties are strangers, the same theory may not be applied… But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts.  In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.”

The high court held that the case would not be covered by Sec. 90 of the Indian Penal Code, which talks about consent known to be given under fear or misconception, by observing that:

“… the appellant communicates his desire to suck her. The prosecutrix says “No” and gives a push, but ultimately goes along. In her mind, the prosecutrix remembers a clip from the case of Nirbhaya, a hapless girl who was brutally raped and killed, when the maelfactor had declared that if she (Nirbhaya) did not resist, she might have lived…

 There is no communication regarding this fear in the mind of the prosecutrix to the appellant. The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act. The appellant had no opportunity to know that there was an element of fear in the mind of the prosecutrix forcing her to go along.”

On the benefit of doubt, the high court acquitted the accused. In doing so, it also goes into theories of consent to hold that:

“... sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an “affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There would be some difficulty in an universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent, or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other…

In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no…  The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent.”

The reasoning in these two pronouncements revolves around the proposition that the victim had consented to the sexual acts performed. However, this reasoning is quite contrary to the concept of ‘consent’, which has also been explained in various judgments. The decision in Rao Harnarain Singh vs State (1958) described ‘consent’ as follows:

“A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of a rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

Submission of her body under the influence of fear or terror is not consent. There is a different between consent and submission. Every consent involves a submission but the converse does now follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.”

The same view has been expressed by Kerala High Court in Vijayan Pillai @ Babu vs State of Kerala, 1989 (2) K.L.J. 234, wherein the high court quoted Jowitt's Dictionary of English Law, II Edn., Vol. 1, which explains consent as follows:

“An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. Consent supposes three things - a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or under influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.”

A 3-judge bench of the Supreme Court, while dealing with the aspect of ‘consent’ for the purposes of Section 375 IPC, in State of HP vs Mango Ram (2000), held as follows:

“Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent.”

In Yedla Srinivasa Rao vs State of Andhra Pradesh (2006), the Supreme Court ruled that if a victim states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The court had been guided by Section 114A of the Indian Evidence Act, 1872, which clearly provides that in a prosecution for rape where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Further, in the decision in State of Uttar Pradesh vs Chhotey Lal (2011), the Supreme Court referred to an American decision to explain ‘consent’ as follows:

“In order to constitute rape, there need not be resistance to the utmost, and a woman who is assaulted need not resist to the point of risking being beaten into insensibility...if she resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not consent.”

The importance of ‘consent’ has been aptly explained in article titled “Acquaintance Rape and Degrees of Consent: “No” Means “No”, But What Does “Yes” Mean?” in the Harvard Law Review (2004), which states that:

“After having spent so much time establishing the basic premise that "no" means "no," what is now being witnessed is the beginning of a shift in attention to more complex issues of rape - issues surrounding the presence, rather than the absence, of consent. Of primary importance in acknowledging this complexity is the rejection of the idea that any consent during a sexual encounter or even consent to sexual intercourse is generalized and nonspecific. Consent, even consent to intercourse, has its limitations and its conditions. A woman must be able to consent to sexual contact without creating the presumption that she has consented to sexual intercourse. Similarly, a woman must be able to consent to sexual intercourse while retaining the right to revoke that consent for any reason.”

Therefore, it can easily be concluded that a man cannot take a woman’s silence as indicative of a willingness to engage in sex. The most important aspect is the focus of the law should not be on any previous relationship between the man and the woman, but instead it must be based “whether she wanted the particular act of sex on that particular occasion with that particular man”. In the Indian context, by virtue of Section 114A of the Indian Evidence Act, 1872, when sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman and she states she did not consent, the court shall presume that she did not consent. Therefore, the two high courts have mistaken the concept of ‘consent’. A feeble ‘no’ does not mean a ‘yes’. It also means a ‘no’. The pronouncements by the Punjab & Haryana High Court and by the Delhi High Court should have been guided by what Justice Krishna Iyer had observed in Rafique vs State of UP (1981):

“When a woman is ravished what is inflicted is not merely physical injury, but "the deep sense of some deathless shame…
A rape! a rape!...
Yes, you have ravish'd justice;
Forced her to do your pleasure…
Hardly a sensitized judge who sees the conspectus of circumstances in its totality and rejects the testimony of a rape victim unless there are very strong circumstances militating against is veracity. Judicial response to human rights cannot be blunted by legal bigotry.”

Anurag Bhaskar is a law graduate from Dr. Ram Manohar Lohiya National Law University, Lucknow. He tweets at @anuragbhaskar_

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]