This post is written by Mehul Jain, a student of Maharaja Agrasen Institute of Management, Rohini.

What is consent? Consent in a layman’s language is permission or approval for something to happen or not happen. There have been many debates as to what constitutes to be a valid consent and to what is said to be non-consensual.

The Indian contract act, 1872 defines consent as “two or more persons are said to consent when they agree upon the same thing in the same sense.” According to this act the consent of the parties must be free from any sort of coercion, undue influence, fraud, misrepresentation or any mistake. The consent of a person is basically valid when no other external factor is applied upon it and it is given independent of the above mentioned influences or threats. At the same time consent is as well defined in the second explanation of Section 375 of the Indian Penal Code “Consent means an unequivocal voluntary agreement when the women by word, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”.

Consent as it sound is a very important factor in the process of deciding a rape case. The act of sexual intercourse with a person without his or her valid consent is considered to be rape according to the law. Whether there was consent or not should only be decided by courts after careful study of the circumstances in individual cases. There is no straitjacket formula for determining whether consent given by a victim to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The law of rape was amended in the year of 2013 after the nirbhaya case so as to make the law more realistic.

In the past few years a new terminology has came into existence, “passive submission”. The term passive submission is not as simple as it sounds .The concept of submissive can be used to describe the term, which is – ready to conform to the authority or will of others, this means to give in to the option or control of the other person, but this also does not completely explains the term being used in the court of law.

Passive submission was pioneered as a concept for the wolves, it is expressed when a low-ranking wolf is threatened by a dominant wolf who is expressing its authority by baring its teeth and growling. In this behavior, the low-ranking wolf tucks its tail between its legs, lies on the ground, and exposes its belly to the dominant wolf. The lower-ranking wolf may also demonstrate subordinate affection, the act of the lower-ranking wolf cannot be said to be consensual in nature but an act done under fear of life [1]. From this an inference as to the true meaning of this term can be formed. However the Indian law nowhere specifically talks about the concept of passive submission. The closest it gets is given in the second explanation of Section 375 of the Indian Penal Code “Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity”, but this talk only about the use of physical resistance as a symbol of denial and not exactly mentions the phenomenon of passive submission.

A Bench led by Justice Dipak Misra said in a judgment that ‘consent’ for sexual act required “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 and assent.” [2]

Consent is said to be free when a woman agrees to submit herself, while in a free and unrestricted possession of her physical and moral power to act in a manner she wishes. Consent can either be expressed or implied based on the nature and circumstances of the case. However there is a difference between consent and submission. An act of hopelessly giving up in the face of inevitable force is not consent in law.

In Rao Harnam Singh, Sheoji Singh v. State, [3] Kalu Ram, the accused’s tenant, was to provide his 19-year-old wife to satisfy the accused Rao Harnam Singh and his guests with the pleasure of sexual intercourse, on the eve of the entertainment party organized on the occasion of transfer of Ch. Mauji Ram, Dy. Superintendent, prison, Gurgaon. The girl firmly opposed this terrible claim, but under the pressure of her husband, she was forced to surrender.

Three accused persons- Rao Harnam Singh, Ch. Mauji Ram, and Balbir Singh raped her overnight and she died almost immediately. Her screams were heard by some advocates living in the neighborhood. Denying the defense argument that the girl was a willing party and willingly handed over her body to the three, the High Court while holding the accused liable for the offence of rape distinguished between ‘consent’ and ‘submission’:

  •  A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, 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 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 no consent. Although each consent involves a submission, the converse does not follow and a mere act of submission does not involve consent.
  • A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in the manner she wants. Consent implies the exercise of a free and unhampered right to forbid or 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 in by the former.

After this brief study of the difference between consent and passive submission, it can be said that passive submission should not be confused with consent and a person guilty of the heinous offence of rape should not be acquitted on the ground of passive submission being a defence to the criminal liability.

In my personal opinion though passive submission is nowhere equivalent to consent but, I think that passive submission stand alone might be considered as a valid consent in a case where no use of any other force or fear of any sorts is presumable or evident to the life or limb of the victim or any other person so related to the victim, as there are some evils in the society who would take the advantage of this concept to either harm a person with the intention of defaming him or to taking out personal vengeance on him.

[3] AIE 1958 Punj 123

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