Section 375 of the Indian Penal Code describes consent as “an unequivocal voluntary agreement when the woman communicates a willingness to engage in the specific sexual act through words, gestures, or any other means of verbal or nonverbal communication.”
Further to this, the 2013 amendment to the law further states that
“The amendment defines ‘consent’ as an unequivocal agreement to engage in a specific sexual act; it also clarifies that the absence of resistance does not imply consent.”
The Madras High Court vs Anthony observed that a woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted.
Consent implies the exercise of a free right to withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred by the former.
What does this mean for the PoSH cases?
As PoSH cases are essentially cases where an unwelcome act has been committed towards the other individual. It means that there has been a lack of consent in such a situation. It has to also be kept in mind that according to the law “absence of resistance does not imply consent.” The court tries to broaden the scope as to how consent can also be constrained by power dynamics, fear of retaliation, and social stigma.
In State of Himachal Pradesh versus Mango Ram, the Supreme Court held that,
“Submission of the body under the fear of terror cannot be construed as a consented sexual act.” If we analyse this precedent in a wider gender justice and violence against women framework, “going along with something” because of fear that may arise out of a direct or implied threat is not consent.
Takeaways for the IC
When addressing the matter, the IC members should not question why the complainant did not say no.
However, the case has to be from the lense that :
- Could the person have faced violence if they said no?
- Would they fear any retaliation on a professional level if they said no?
- Did the respondent have any position of power over the complainant?
In Bharwada Bhoginbhai Hirjibhai v State of Gujarat, the Supreme Court also considered that when a woman comes forward, considering the stigma attached to survivors, “is a built-in assurance, that the charge is genuine rather than fabricated.”
It’s important to note that understanding consent is something that will depend on case to case. But the core of the concept as enshrined in the law is to take into account “the impact on the victim and not the intention of the perpetrator”