Sumitra Choudhary
Advocate – Supreme Court of India
As a dynamic legal professional Sumitra is poised to leverage her experience as a Lawyer practicing at the Supreme Court of India and use her educational qualifications, skills and knowledge for bringing in Gender equality, Sustainable development & Inclusive growth. She is highly committed to support the cause of legal inclusion and has forayed into the journey by spreading legal awareness to the last mile of the social strata and making legal accessible and understandable in simple language.
UNDERSTANDING “CONSENT”
IN INDIAN LEGAL PERSPECTIVE
Learn to differentiate myth from reality, fake from fact,
fair from false and notional from actual
Consent in the simplest terms refers to the “Permission for something to happen or agreement to do something.” In classical liberal theory, “consent” refers to an expression of autonomy and free will by competent and rational people who are free from coercion and pressure. Patriarchy creates and sustains a culture which makes it easier for men to define and maintain their boundaries as individuals than it is for say, women. Hence, the concept of consent is strongly dependent on how much say an individual has in the society. The classical liberal view of “consent” fails to represent women’s choices in patriarchal societies because it ‘overplays’ female autonomy and ignores the power gap between men and women.
Consent under the Indian Penal Code (IPC) – Consent is difficult to describe but simple to comprehend. Consent must be “unequivocal,” “voluntary,” and “willing,” according to the definition, and the will must be “communicated.” As a result, the concept of consent raises a number of important questions, such as whether consent entails willing agreement; whether there is some relationship between the words “shall” and “consent; and whether consent entails voluntary agreement.
What does Section 90 in The Indian Penal Code say?
90. Consent known to be given under fear or misconception.
— A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.— if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.— unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
What is NOT consent?
Clothing Style of a Person: The type of Clothing or attire, ling / short, revealing / non-revealing is never an Invitation / Consent for any sexual activity, unless it is stated so.
Body Language: If a person is silent or not resisting physically, it does not mean consent. Silence or immobility: Not saying “No” explicitly does not mean it’s a consent. Consent in Marital Relations: Assuming that wife is obligated t would be up for sexual activity at any point, just because they are related to you in some way is not consent.
Past Consent: Consent given in the past is not a consent forever. It needs to be sought every time. Consent given for one act is not consent given for anything and everything. For example, Consenting for holding hands in no way implies consenting for anything beyond that.
Incapacitation: An unconscious, drunk or drugged person cannot give active consent.
Coercion: Constantly asking somebody pressurises them and any consent obtained under pressure is not a valid Consent.
Conclusion
Consent is not too difficult to understand if you understand that everybody has a different relationship with their body. No matter what kind of a relationship you think somebody has with their body, it’s still very personal. It’s thus only legit to be able to respect each other’s bodily autonomy and not just mindlessly go on impinging on them. Sexual activity with somebody who is not eligible to give consent is considered a sexual offence. That however, doesn’t mean that everybody who is eligible to give consent is always up for all sexual activity with anybody and thus need not be asked. The only best way is to ask, politely yet firmly, but not more than once. Understand the importance of “Consent”. Only an Informed, Clear, Voluntary, Freely given, Continuing, Expression of “Yes” is a Consent.
