Misunderstanding Consent: When Indian Courts Interpret a Woman’s 'No' as a 'Yes'

In early October, I was invited to a college to judge students’ artistic articulation of “consent.” A call for participants had the words, “What is your yes? What is your no?” As students went on with their speeches, mimes, plays, and songs, they extolled their perception of consent: they proclaimed “yes to women’s education” and “no to dowry.” Among the participants were law students, and it was clear that these soon-to-be lawyers had not been imparted with much gender discourse. While their concern was about not winning the competition, my concern was the lack of any understanding of consent among these young adults, and the larger issue of how consent has been ignored by the highest judges in India’s courts in three recent cases.

Filmmaker Mahmood Farooqui was acquitted of rape charges by the Delhi High Court last month. In 2016, he had been sentenced after a court trial to seven years in prison for sexually assaulting an American postgraduate student in his Delhi home.

Apart from the Delhi High Court’s doubt of whether the incident had actually taken place, the Court said the woman’s “feeble” protests meant “yes.” She has maintained that he forced himself on her when he was drunk, and ignored her repeated pleas to stop. In the judgment, Justice Ashutosh Kumar of the Delhi High Court shockingly differentiated the way of refusing consent, between a conservative person, and “persons of letters,” and thus suggested that previous physical contact laid the ground for the inability to decipher denial of consent.

Much to the chagrin of activists who have pressed for the inclusion of “consent” in rape laws in India, the judgment relies on myths about rape and gender stereotypes, questions the woman who is raped and ignores her agency. Further, the judgment indicates the expectation of specific types of behavior from rape survivors: her not screaming and fighting back physically has been construed as her consent. By stating different parameters of consent, the judgment suggests that rape by acquaintances is less serious than when it is committed by strangers. This reasoning explains why marital rape is still not considered a crime in India.

Around the same time, a similar judgment was passed by the Punjab and Haryana High Court. It not only released three men accused of rape on bail, but also patronized and shamed the rape survivor, blaming the “degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades, and a promiscuous and voyeuristic world.” The accused – former law students of OP Jindal University – forced the woman to comply with sexual demands over two years, before she went to the police. Hardik Sikri had allegedly first coaxed the woman to send nude photos of herself, and used them as blackmail to coerce her submission to him and his friends.

The court ordered bail for the accused, citing that a jail term would deprive them of education, but not before scolding the rape survivor for her “casual relationship with her friends… and experimentation in sexual encounters.” By suggesting that her narrative does not reflect gut-wrenching violence, the court – like in the case of Farooqui’s acquittal – corners the rape survivor for her behavior, instead of reasoning why she was forced to submit to the pressures of the rapists.

Down south in Kerala, 24-year-old Akhila (now Hadiya), who had converted to Islam and married a Muslim man, has been held captive by her father, who fears her conversion is part of a broader agenda toward recruiting her into the Islamic State. After Hadiya’s father approached the Kerala High Court alleging that his daughter’s religious conversion was forced, the court nullified Hadiya’s marriage to Shafin Jahan, and suggested that Hadiya is still at a “vulnerable age” and handed her to the “protective custody” of her parents. Jahan approached the Supreme Court seeking the release of his wife and surprisingly, the Supreme Court directed the National Investigation Agency (NIA) to investigate the matter.

Apart from the elaborate machinery of the Rashtriya Swayamsevak Sangh (RSS), which is the bedrock of the ruling Bhartiya Janata Party (BJP), to discredit and attack the Muslim community, and thus go shrill in the event of such conversions, the larger question of the guardianship and ignorance of consent of an adult woman reeks of the patriarchal attitude of Indian courts.

An adult woman has the right to choose her religion and her partner. So the courts should never have entertained this case.

All three cases – Farooqui’s acquittal, the bail to the three Jindal students, and Hadiya’s imprisonment by her father – deemed the issue of the woman’s consent as immaterial.

So where does one head from here? For one, it is good to remember that the trial court convicted Farooqui of rape in 2016. The Bombay High Court denied bail to a man for repeatedly raping his minor niece, even as the accused brought up the girl’s past sexual relations to seek clemency. Justice AM Badar rejected his argument, acknowledging the girl’s right to say no, notwithstanding her other relations. Yesterday, the Supreme Court deemed nonconsensual sex with a minor wife as rape, which is thus also a step toward eradicating child marriage and criminalizing marital rape.

Blaming the victim continues to take precedence over a woman’s consent. While it can be an easy downward slope toward alluding to a rape culture in India, the courts’ acceptance of a woman’s “no” could be the first step toward delivering justice.