[This Article has been authored by Rea Agrawal, a student at RMLNLU.]

Introduction

Recently, a video clip featuring K. R. Ramesh Kumar has gone viral. The clip shows the Congress MLA saying “when rape is inevitable, lie down and enjoy it” in the Karnataka Assembly. This statement has garnered widespread outrage because the remark comes from within the house-from the very people who the public trusts to make laws protecting them.

In light of this statement, it becomes increasingly important to critically analyse Indian law and Indian courts’ stance on passive submission versus active consent in rape cases. It is even more pertinent to examine the failings of Indian rape law, including the glaringly obvious mistake made while drafting Section 120 of the Bharatiya Sakshya Adhiniyam (henceforth, “BSA”), which excludes gang rape victims, which arguably, was the very reason why the provision was brought by the Legislature, in the aftermath of the Tukaram v. State of Maharashtra case.

Passive Submission v. Active Consent

Section 63 of the Bharatiya Nyaya Sanhita (henceforth, “BNS”) gives seven circumstances, out of which, only the first circumstance talks about the will of the woman. An act without a woman’s consent is not necessarily against her will, whereas an act against her will is necessarily without her consent. This distinction can be understood by the fourth circumstance under Section 63, BNS, wherein a woman is falsely led by a man into believing that he is her husband. Although she may  willingly engage in sexual intercourse with the man, but her consent for the same cannot be considered valid because it is obtained through misrepresentation. 

In English law, consent means positive consent. This is reflected in Section 74 of the Sexual Offences Act, which provides that a person consents if he agrees by choice and has the freedom and capacity to make that choice. This is not the case in Indian law, which is sorely lacking in this aspect.

Every consent implies submission, but the inverse is not true. One such horrendous case in the history of Indian judiciary is Tukaram v. State of Maharashtra (hereinafter also referred to as the “Mathura case” & “Tukaram case”), wherein mere inability to offer resistance was construed as consent. When the case reached the Bombay High Court, the High Court overturned the trial court’s observation that the victim was habitual to sexual activity and raised the alarm solely to clear her image, and the High Court held that passive submission does not equal consent and absence of injury marks on the victim is not indicative of consent. The Supreme Court, however, failed to distinguish between positive consent and passive resignation. The only silver lining of the case was that the judgment led to massive reforms, including the criminalization of custodial sexual intercourse following the 1983 amendments. Such conduct, though, does not necessarily amount to the offence of custodial rape, which is dealt under Section 64(2) of the BNS as an aggravated form of rape. 

In the English cases of R v. Flattery, R v. Williams, R v. Clarence, R v. Linekar and R v. Tabassum (Naveed), it has been consistently held that only frauds relating to the nature of the act or identity of the doer can be said to vitiate consent. If there is no fraud or mistake induced by the accused as to nature or identity, consent is not considered vitiated . 

Despite the grossly erroneous decision rendered in the Mathura case, a ray of hope could be seen in judgements such as Nafe Singh v. State of Haryana and Pramod Suryabhan Prabhas v. State of Maharashtra wherein it was held that consent requires active understanding of circumstances, actions and consequences, and that subsequent resignation to the situation after initial resistance does not imply consent. Explanation 2 of Section 63, BNS, erstwhile Section 375 Explanation 2, Indian Penal Code (hereinafter, “IPC”), provides the idea of positive consent and clarifies that mere submission does not amount to consent. Although it does not directly transplant the doctrine of consensus ad idem from contract law, it can nevertheless be seen as a commendable effort to reflect the idea of “meeting of minds” in the context of sexual consent.  In light of the same, the statement made by the MLA is rudimentary and orthodox and perpetuates the idea that passive resignation somehow makes the act of rape less excruciating.

Section 120 of BSA

Section 120 of the BSA, erstwhile Section 114[A] of the Indian Evidence Act, creates a mandatory presumption that consent did not occur and the presumption may be rebutted by the defence by giving evidence of consent. However, Section 120, BSA is applicable only to aggravated forms of rape under Section 64(2), BNS.

The problem with the presumption under Section 120, BSA arises from the 2013 Criminal Law Amendments. Section 376[D] of the Indian Penal Code – the provision on gang rape – was inserted during the 2013 reforms as a result of the backlash received over the Nirbhaya gang rape. Earlier, Section 376 had four sub-sections and Section 376(2), IPC also included within its ambit the offense of gang rape. This was the guiding force behind the initial institution of the presumption by the legislature, after being aghast over the Tukaram judgement. 

Accordingly, it appears that it is merely accidental & not deliberate that the gang rape provision has slipped through the clutches of the presumption. It is the drafters’ oversight that the gang rape provision has been awarded a separate status. Likewise, the same oversight continues in the BNS wherein Section 70, BNS deals with gang rape as an individual provision. 

A Ray of Hope

India is a country where the separation of powers as a concept has mostly worked out in our favour. When it comes to laws, if the Legislature errs, the Judiciary addresses the gap whereas when the Judiciary errs, the Legislature intervenes. The presumption of Section 120, BSA is a prime example of the same. Section 120, BSA is not a general provision and was instituted to apply only to certain offences of rape. However, the Supreme Court has applied the provision to all offences including rape under Section 376(1), IPC.

In the case of Puran Chand v. State of Himachal Pradesh, Justice Gyan Sudha Misra observed that the presumption applies even in cases of attempt to rape. Since the presumption was used in a case of attempt to rape, it may be applied to cases of gang rape as well but the problem lies in the way Section 120, BSA is couched, which leaves a lot to be desired.

Another Glaring Error

Criminal punishment can never be of an either-or nature, as reflected in Section 4(c)(1) of the BNS. Section 64(1), BNS, however, prescribes rigorous punishment with the qualifier “either”. The term “rigorous” was inserted after the 2013 criminal law reforms, but the term “either” was retained. The author finds this as another blatant example of oversight by the legislature as they ought to have removed “either” once “rigorous” punishment was introduced. This is because, in the case of  punishment of “either” description, judicial discretion comes into play, whereas the provision for rigorous punishment was inserted by the legislature to reflect the seriousness with which rape is regarded as one of the most heinous crimes in modern Indian society.

Conclusion

The transition to the new criminal laws was intended to modernize Indian criminal jurisprudence; yet it has preserved and in some instances, even created significant legislative oversights. The most critical failing remains the technical disconnect between passive submission and active consent. While Explanation 2 of Section 63, BNS attempts to mandate positive consent, the law continues to struggle with the legacy of the Tukaram judgment, which historically conflated resignation with agreement.

Furthermore, the exclusion of gang rape from the mandatory presumption of non-consent under Section 120, BSA, despite gang rape being the catalyst for such reforms, highlights a blatant drafting error that necessitates judicial intervention to ensure victims are not denied procedural protections. This pattern of oversight extends to sentencing; the contradictory phrasing in Section 64(1), BNS, which prescribes rigorous punishment of either description, undermines legislative intent. By retaining “either” the statute inadvertently reintroduces judicial discretion where the 2013 reforms sought to mandate severity. Ultimately, for these laws to effectively safeguard women, the judiciary must bridge these gaps until the legislature rectifies these statutory contradictions.