I. 1970s–1980s: Episodic Campaigns for Legal Reforms

Broadly, feminist initiatives in post-colonial India can be traced back to the 1970s where social movements began to be self-consciously feminist, centered around physical and sexual violence against women both within and outside the home.^{Footnote 10} Autonomous women’s movements in the 1970s primarily agitated against custodial rape.^{Footnote 11} Two cases of the Supreme Court’s acquittal of police officers for rape in custody—of Rameeza Bee, a young Muslim woman in 1978^{Footnote 12} and of Mathura, a young tribal woman in 1980^{Footnote 13}—galvanized a national campaign demanding legal reforms of rape laws.

In acquitting the accused police officers, the Court emphasized the victim’s sexual history and promiscuous character to infer consent over clear evidence of rape and assault.^{Footnote 14} This reasoning adopted by the Supreme Court became the catalyst to challenge the archaic legal and social understandings of rape and consent derived from the Indian Penal Code (IPC), drafted by the British in 1860. Consent in rape cases was outrageously simplified and could be implied from a mere absence of injuries. Therefore, the ensuing national campaign focused on expanding the definition of rape as well as the understanding of female sexuality.

The initial feminist response took the form of “An Open Letter to the Chief Justice of India” written by four law professors in 1979,^{Footnote 15} which triggered a public outcry as well as formation of multiple women’s rights groups, such as: Forum Against Oppression of Women (Mumbai), Manushi, Saheli (Delhi), Stree Shakti Sangatana (Hyderabad), and Vimochana (Bangalore).

On the one hand, the open letter from the law professors emphatically differentiated between consent and submission. It proposed the idea that “consent involves submission, but the reverse is not true. Hence, absence of resistance does not necessarily indicate consent.”^{Footnote 16} At the time, this letter marked a paradigm shift from the prevalent judicial discourse that insisted on physical signs of injury and clear signs of resistance as the sine qua non for establishing non-consent in cases of rape. On the other hand, the coinciding feminist led-social movement placed the issue of rape and sexual violence in the public domain.

Women’s groups used this opportunity and attention from the State to push for a broader campaign that sought legislative reforms. The mobilization of organizing sit-ins, poster campaigns, and writing opinion pieces managed to move the government to set up a Law Commission inquiry which would recommend amendments to the existing criminal law provisions concerning rape and sexual assault.^{Footnote 17}

The Law Commission Report of 1980 was a significant document in so far as it was the first detailed report to include consultations with women’s organizations, marking the first explicit engagement of the movement with the State.^{Footnote 18} It focused exclusively on rape laws, addressing issues ranging from consent to burden of proof to procedural safeguards. Minding the recommendations of women’s organizations, the report recommended substituting “free and voluntary consent” for the word “consent.” The Commission asserted that:

While the Government recommended adopting the definition of consent as “free and voluntary” in the 1980 Criminal Law Bill (Amendment), it was ultimately rejected by the Joint Committee of Parliament. As a result, the definition of “rape” and understanding of “consent” remained unchanged, and the State only added more categories to the offense of rape and sexual violence.

Notwithstanding the subsequent disappointments in the final amendment, feminist recommendations were already filtered out in the negotiations with the Law Commission for itself, while responding to the women’s movement demand of adding recklessness as a culpable mental element, theorized rape as a result of “uncontrollable passion or lust of a savage and his approach to the act of rape is a mechanical, non-emotional one.”^{Footnote 20} Making recklessness a culpable mental element would have included cases where the sexual act was performed in callous disregard of female desire. However, when the Commission describes rape as an act of passion it places men at the center of the discourse on rape. It completely erases the possibility of making space for discussion on what the woman wanted. Theorizing a rapist as a lustful individual completely obliterates the pervasive multi-faceted nature of sexual violence in a patriarchal structure. While constructing the rapist as non-human, the savage other, the Law Commission saw rape fundamentally as a law-and-order problem, rather than that of structural male dominance and the inequality and oppression of women. The report also explicitly rejected women’s organizations’ proposals to spell out the distinction between “passive submission” and “consent” by way of an explanation— as it exists now after the Criminal Law Amendments of 2013. The rationale given by the Commission was that the term “free and voluntary consent” is wide enough to include all categories of duress.^{Footnote 21}

While responding to this reasoning of the Commission, the feminist interventions end up bending down to this narrative. Their emphasis falls exclusively on finding adequate responses to the law-and-order problem rather than on addressing factors which enable this violence.

II. 1990s–2000s: Flirting with International Legal Frameworks

Anti-rape campaigns in the 1980s were too episodic and sporadic for them to be transformed into a genuine civil rights issue.^{Footnote 22} This fragmented mobilization, however, represented a politics of the possibility to use social mobilization as a tool to engage with the state. To add to the complexity, economic liberalization in the 1990s led to an influx of western donor funding which gave rise to a new “funded” form of non-governmental organizations. With more money came institutionalization and more defined structures and spaces. Distinguishing between the newly funded, formal NGOs and the women’s rights groups which were leading the movement in previous decades became increasingly difficult. The movement, in fact, lost its fluidity and openness of social groups, as was the case in 1970s in the NGOization^{Footnote 23} process. According to some, the NGOization led to a relegation of autonomy and agency to external, State and non-State, actors and the resulting reliance on the vocabulary of universal women’s rights as human rights led to an undermining of the essence of a genuine feminist movement in India after it peaked in the 1970s, the 1980s, and the early 1990s.^{Footnote 24} In scholarship, parallels of co-optation and erasure have also been drawn with the “NGO boom” in the Latin American context that took place in the 1980s.^{Footnote 25}

The vocabulary of international human rights and protection may offer considerable leverage to women’s rights groups when engaging with international organizations, donors, and States for their support, welfare programs, and capacity building. However, the struggle of the Indian woman cannot be comprehensively articulated in the limiting language of international human rights treaties. They may serve as a blueprint setting the overarching goals of the movement, but their general framework seems severely inadequate to address the specific needs of marginalized Indian women caused by a combination of factors including caste, class, tribe, and religion. A protection of right against discrimination on the basis of gender and establishing rights of women on an equal basis does not capture the different experiences of oppression of a Hindu upper-caste woman and a Muslim, Dalit, or tribal woman. Moreover, the unenforceability of these international agreements and the Indian state’s disregard of the international human rights framework in general^{Footnote 26} further add to the limitations of this approach. Regardless, the articulation of rights-based demands for legal reforms made by women’s groups can be largely attributed to this phase.

III. 2000s: Courting Sexual Consent

Another significant moment when the women’s movement turned to criminal law was when NGO Sakshi filed a petition before the Supreme Court of India in 1999. The petition sought to broaden the definition of penetration in rape law beyond the phallocentric penile-vaginal model.^{Footnote 27} Sakshi, the NGO, argued that restricting the definition of rape to penis-vagina penetration ignores the contemporary understanding of rape as an attack on the dignity of women, rather than a mechanical physical act. Though the court did not pass any immediate orders, it directed the Law Commission to analyze the multiple issues which came up in the discourse around Section 375 of Indian Penal Code.^{Footnote 28} Consequently, in 2000 the 172nd Law Commission report recommended that the term “sexual intercourse” in Section 375 be read to include not only penile vaginal penetration but other forms, including digital, oral penetration, anal penetration, and penetration with objects. ^{Footnote 29} However, the report also recommended to make the offense gender-neutral, negating all forms and levels of gendered violence.Footnote ³⁰

The Law Commission report was also important as it was the first time a government body formally contemplated the removal of the marital rape exception. This exception provides that it is not an offense under Indian criminal law for a husband to rape his wife unless the woman is a minor. The line of argument adopted by women’s groups such as Sakshi and others, was that if marriage is not an exception for any other physical injury resulting in an offense, then why should the status of “husband” of the victim be an extenuating circumstance for the perpetrator of a sexual offense. ^{Footnote 31}

However, the Law Commission rejected this argument on the grounds that removing the exception would lead to excessive interference in marital relationships.^{Footnote 32} The perceived sacrosanct status of marriage made it extremely difficult for the Law Commission to conceive of non-consent within the context of marriage. Deductively, according to the Commission, consent in rape cases is about marriage rather than freedom of choice.

Since the 1970s, the Indian women’s movement, in its various forms, had been engaging with the State to seek legislative reforms and criminal law amendments. With the help of social mobilization, women’s rights groups would manage to get the State to respond, but their already limited demands were met with minimal amendments and almost no change in the way the law perceived the problem.

Even though such engagement with the State has always been fraught with contradictions, it is only through engaging and creatively negotiating with the tensions that the Indian feminists have hoped to build a more sustained movement. It is against this backdrop of small victories earned while engaging with the State, that the 2012 protests should be viewed as a turning point for the Indian women’s movement.

I. Negotiating Concessions: The Justice Verma Committee

True to its form, the immediate response of the government to the protests was to adjust the criminal justice mechanism as the primary solution to address the “epidemic” of sexual violence. The federal government setup another Committee to review existing laws and suggest amendments to the criminal law relating to sexual violence. The Committee was composed of Justice J.S. Verma, Justice Leila Seth (both retired judges), and Senior Advocate Gopal Subramanium. Working on a self-imposed deadline of one month, the Committee sought proposals from activists, scholars, lawyers, and jurists in India and across the globe.^{Footnote 38} It submitted a 627-page report within 29 days that contained some ambitious recommendations to reform the Indian criminal justice system.^{Footnote 39}

The Committee report made progress in redefining rape as an issue of bodily integrity and sexual autonomy rather than an attack against the honor of a woman’s family or the wider community.^{Footnote 40} In keeping with the spirit of the protests, its recommendations were framed within the discourse of the right to sexual autonomy and bodily integrity instead of the traditional notions of “Indian womanhood” based on chastity, conservative sexual morality, honor, and purity that had been engrained in the legal language relating to sexual violence.^{Footnote 41}

The committee proactively called for participation from women’s organizations leading to a more intense engagement between the feminist movement and the State. The demands of these organizations did not coincide with the calls made by the social movements as their skepticism towards the State’s monopoly on violence was very visible in these discussions. For example, several feminist interventions argued against increasing the age of consent from sixteen to eighteen years of age.^{Footnote 42} Increasing the age of consent, they argued, would widen the ambit of sexual governance and criminalize consensual sexual relationships among teenagers.^{Footnote 43}

Feminist organizations also called for intersectional considerations. These groups were concerned with the scope of the term “custody” in demarcating the line between aggravated and non-aggravated forms of sexual assault in Section 375 of the Indian Penal Code. The meaning of “custody” was limited to police officials, public servants, management or staff of a jail or women’s or children’s institutions,^{Footnote 44} and triggered a presumption of non-consent. Feminists asserted that personnel of the armed forces and paramilitary forces should also be included to account for the atrocities in conflict areas like Jammu, Kashmir, and Manipur.^{Footnote 45} Further, some feminists called for caste-based sexual atrocities to be identified as aggravated sexual assault, thereby acknowledging caste as an additional layer of marginalization.^{Footnote 46} There was a continuing, clear consensus among feminist groups concerning the deletion of the exception for marital rape. Unlike earlier reports, the Verma Committee recommended removing the exception.^{Footnote 47}

All intervening feminist organizations departed from protestors’ calls for capital punishment in rape cases. Rejecting this harsher form of punishment, feminists argued that there was no evidence supporting the claim that the death penalty has a deterrent effect; on the contrary, they cited studies showing that conviction rates fall as the severity of the punishment increases.^{Footnote 48} The Justice Verma Committee report endorsed this position and recommended that capital punishment not be introduced for rape cases.

As evident from these recommendations, the Indian feminist engagement with the law has been skeptical of the Indian state’s claim to power in the name of justice. This apprehension with state power can be dated back to the genesis of the Indian woman’s movement, which began during the emergency.Footnote ⁴⁹ The widespread opposition of feminists to the issue of the death penalty and increasing the age of consent shows that it has always been aware of the consequence of carceral politics on criminal law.

II. An Empty Promise: Criminal Law Amendments of 2013

Like on earlier occasions, one witnessed a watering down of feminist recommendations. The Criminal Law Amendment Act of 2013 (CLA) skipped each of the Committee’s key recommendations that would have advanced the rights for gender equality and respect for women.^{Footnote 50} The legal reforms elevated the issue of sexual violence to a state of emergency.Footnote ⁵¹ Pratiksha Baxi, a well-known feminist scholar, correctly called the CLA a spectacle of legal reform enacted to detract attention from permanent states of emergency ^{Footnote 52} She refers to situations of everyday oppression, such as rapes by members of security forces in the conflict areas of Kashmir and Assan, marital rape exception, and routine violence on the Dalit women, as permanent states of emergency which were skipped in the reforms.

While the CLA imposed harsher punishments on perpetrators of rape and allowed for capital punishment in cases that result in death of the victim, it retained the language of outraging the modesty of women and ignored the role that caste, class, and ethnicity play in marginalization of the woman subject.

Although endorsed by the Justice Verma Committee report, Parliament did not heed the concerns of the women's movement and increased the age of consent from sixteen to eighteen. In doing so, the government privileged the protection of “Indian morality” over feminist calls to recognize the sexual agency of women.^{Footnote 53} While addressing the call to criminalize marital rape, the Parliamentary Standing Committee argued that if marital rape was criminalized the “entire family system [would] be under greater stress and the committee may perhaps [do] more injustice”.^{Footnote 54} Once again, at the center of the legislative discourse were not concerns about consent, but the institution of the family. The discourse privileges heteronormative marriage and perpetuates the embeddedness of rape in property and marriage regimes.

With respect to capital punishment, Parliament justified the introduction of the death penalty in rape cases by citing examples from the Middle East, Russia, and China.^{Footnote 55} The rationale was that the availability of the death penalty in cases of brutal rape allegedly contributed to the reduction of rape in these countries. This argument was in direct opposition to the submissions of several feminist groups assisting the Justice Verma Committee and the Justice Verma Committee report itself.

There is a consistent gap between the demands of the women’s groups and the recommendations of the Law Commission and committee reports, and further between the Commission’s suggestions and legislative amendments. There were certain breakthroughs as far as the definition of rape and the affirmative standard of consent was concerned. However, feminist critiques concerning the marital rape exception and the need for intersectionality, which called into question the structures of family and caste, were not addressed. The response of the legislature seems to negotiate between the rights-based discourse and the hegemonic social processes like caste and familial dynamics.^{Footnote 56}

What the women’s rights groups achieved was recognition of their demands in the form of the Committee report. But the social movement that got them the bargaining power became one of the reasons why their demands were not met. As the State seemed to be catering to popular politics by addressing calls for retribution and more violence,^{Footnote 57} a case can be made that the reforms did more harm than good. The following case analysis highlights how the resulting criminal law amendment, which was hailed as a transformative moment in the struggle to address sexual violence against women, was actually a regressive move that reaffirmed traditional norms and familial logic.

III. Promises Unkept: Courts Interpreting the Criminal Law Amendments of 2013

The most important part of the amendments in the CLA was with respect to consent. The legislature, by way of an Explanation to Section 375 of the Indian Penal Code, added that consent for the purposes of the said section would mean “unequivocal voluntary agreement.” It explicitly ruled out passive submission as consent, thereby undoing the consequences of the Mathura Judgment where absence of active resistance was held as a sine qua non for rape. The introduction of the notion of affirmative consent was seen to have opened countless opportunities for the courts to construct consent in accordance with international standards. The affirmative consent standard requires an affirmative and voluntary agreement on the part of the victim, verbal or non-verbal, rather than consent simply being deduced or inferred from the passive conduct of a sexual partner. Feminist scholars in other jurisdictions have asserted that when affirmative standard of consent is understood as the threshold of rape, then the requirement for objective findings on the conduct and body of the victim is, to an extent, minimized.^{Footnote 58}

One of the first major instances where the courts sought to apply the new standard of affirmative consent under the CLA was in the case of State v. Mahmood Farooqui.^{Footnote 59} The case involved the rape of a 35-year-old Columbia University researcher who was visiting India for her field work. She alleged that Mahmood Farooqui, a well-known writer and theater personality, forced oral sex upon her.

The lower court conceptualized rape as “a sin and taking what was most precious to her, [that is] her control over her sexuality.”^{Footnote 60} Such theorization of rape is a break from the dominant discourse of rape being understood as a loss of honor. The court held that:

It is important to note here that the court in the case has set affirmative consent as a standard for sexually intimate relationships. It acknowledges that even if the victim and the accused were in sexually intimate relationship, active participation by the victim is required for consensual sex. The court acknowledges the fact that a rape victim may have frozen due to fear or sheer shock, especially when rape is committed by a person who is known to the accused.^{Footnote 62} The court in this case also took into consideration additional emotional coercion, which may have played a role in determining the conduct of the victim.^{Footnote 63}

This break from dominant discourse triggered varied responses from feminist scholars. On one hand, some feminists hailed it as a progressive shift.^{Footnote 64} On the other hand, some used this as an opportunity to highlight the dangers of this approach becoming draconian and the possibility of diluting due process clauses and giving more power to the punitive State.^{Footnote 65}

However, these discussions around the trial court judgment soon became redundant in light of reasoning given by the Delhi High Court in its appeal to the Farooqui case. ^{Footnote 66} The court, while focusing on the previous sexual encounters between the accused and the victim, held that the unwillingness of the victim was in her own mind and heart, and was not communicated to the accused. The court took into consideration that on previous occasions the victim had consented to kissing, therefore her “no” would have to be more emphatic in other circumstances. This is a perfect illustration of the phallocentric natureFootnote ⁶⁷ of the rape trial where if a woman consents to certain level of intimacy, sexual complicity for subsequent assault is presumed.^{Footnote 68} The “rational” binary logic that the law follows cannot seem to comprehend that a woman may agree to certain kinds of intimacy but not sexual intercourse.

The court held that:

The dichotomy between a feeble and an emphatic “no” was in clear contravention to the affirmative consent standard which requires active participation by the woman. The CLA makes it clear that within the meaning of Section 375 IPC, consent has to be unambiguous. The amendment made a clean distinction between submission and consent. However, the court, in this case, creates a category of “assumed consent” which manifestly negates the feminist call for greater reciprocity in heterosexual relationships.^{Footnote 70} At the heart of the discourse is the subjectivity of a man as the court relies on the perception of the man rather than the expression of the woman. The court did not inquire about the steps taken by the defendant to ascertain the meaningfulness of consent; in fact, the court legitimized the blatant disregard of the victim’s expression by the defendant.

The judgment is marked by the erasure of a woman's voice from the juridical discourse. The court, while interrogating mens rea, creates another distinction between “persons of letters” and a woman who does not know “the way of the world.”^{Footnote 71} It held that because the “no” was not an emphatic one that is expected of a woman who is intellectually proficient, the accused thought of it as consent. It states:

Here the court places an undue burden on the “intellectually/academically proficient woman” to assert herself emphatically and to resist in the right manner. The judgment requires her to show physical resistance, as for her, passive submission would be deemed as consent.^{Footnote 73} It is interesting to note that even though resistance is no longer a sine qua non in rape, it remains a crucial preoccupation of the court. In 2018, the Supreme Court dismissed the appeal challenging the acquittal of the accused.Footnote ⁷⁴

Therefore, the Farooqui judgment ultimately reversed the advancements made by the CLA. It reinscribes the picture of an ideal rape victim and the aggressive male seducer that still haunts the juridical construction of consent. It manifests the tension between feminist calls for reforms and the interpretative violence of the law. It demonstrates how every act of interpretation runs the risk of undoing the all too certain image of the law—which still struggles with the question of a sexually autonomous woman alleging assault.

Beyond the courtroom, the understanding of mens rea in sexual violence cases has also preoccupied the feminist discourse in India. The CLA, and arguably also the judgment, has also been critiqued on the question of consent. Prabha Kotiswaran, a prominent feminist scholar, noted the importance of considering “honest and reasonable belief” on the part of the accused while adjudicating rape cases. ^{Footnote 75} Thus, to establish mens rea in rape cases the prosecution would have to negate the presence of “honest and reasonable belief” on the part of the accused. However, that argument does not take into account the feminist critique of “honest and reasonable belief” being susceptible to gendered stereotypes. When determining the reasonability of a defendant’s action, the courts are often informed by stereotypical gendered assumptions about socio-sexual interactions. ^{Footnote 76} For example, Munro and Finch prove through their empirical research in England that “several jurors agreed that it would be reasonable for the defendant to believe that the complainant was consenting to intercourse if she ‘had been drinking all night and flirting with him.’”Footnote ⁷⁷ Contrarily, Mrinal Satish, a noted scholar, asserted that the sexual offense provision should be interpreted as a strict liability offense. ^{Footnote 78} Mistaken belief is not a defense that can be taken by the accused in rape cases. However, Latika Vashist, another feminist scholar, cautioned about the dangers of construing rape as a strict liability offense. ^{Footnote 79} She asserts that “excluding enquiry into accused’s state of mind and exclusively focusing on the consent element solely from the perspective of the woman aligns well with the objectives of the ‘carceral’ criminal law project that is repressive.”Footnote ⁸⁰ Theorizing rape as a strict liability offense would create a presumption of guilt against the accused, which in India, is a reminder of the draconian terror laws and deviates from the well-established principles of the criminal justice system.

This back and forth in the feminist circles suggested that any discussion on consent would have to creatively engage with the question of honest belief. However, at the same time, the problems with the liberal underpinnings of the notion of affirmative consent should not be forgotten. The manner in which questions regarding mens rea play out in court is as important a part of rape adjudication as adoption of affirmative consent standards.

On account of affirmative consent as well as interpretation of mens rea in sexual violence cases, the high court decision in the Farooqui case falls short of the promises of affirmative consent made by the 2013 CLA. The promises in the amendment and the minimal legislative developments meant nothing without the backing of progressive interpretation by the courts.

III. Taking Account: Feminist Engagement with Criminal Law

Outside the legal realm, a tangible outcome of the 2012 protests movement described above was that it brought feminist politics to the mainstream. With an increasing number of “Take Back the Night” marchesFootnote ⁸¹ and the proliferation of social media campaigns, ownership of the feminist struggle has become more decentralized. It is not just a concentrated agenda of a handful of activists, scholars, and NGOs. Arguably, it also paved the way for movements like #MeToo campaigns to take their own shape in the specific context of India. ^{Footnote 82}

When applied by the court, the legislative victory of the inclusion of affirmative consent gave way to a regressive interpretation enabling the State to dictate the terms of women’s sexuality. Similarly, outside the courtroom, the language of the liberal women’s rights framework was appropriated by the State to advance its far-right agenda portraying the Muslim woman as vulnerable and in need of the masculinist protection of the State. ^{Footnote 83} This has further rendered it difficult for Muslim women who have been pushing for reform to navigate this space, as the Hindutva agenda has used this framework to paint the picture that minorities do not treat “their” women properly. This, in turn, has legitimized State intervention at the expense of their personal laws and traditions. ^{Footnote 84} Moreover, Dalit and Muslim women often find themselves the object of politics, but at the same time are unable to seek the intersectional consideration they deserve, given their specific situation.

Prominent feminist scholars have also argued against this brand of feminism, reasoning that the legal responses end up producing a strictly regulated sexual subject which can hardly be celebrated as a victory for women’s rights. ^{Footnote 85} Instead, they result in the strengthening of surveillance techniques that have regulated sexual conduct.

One must be extremely careful not to conflate the demands of the anti-rape law movement and responses of the State. It must be emphatically stated that the feminist movement in India, in its post-colonial context, has always been skeptical of the State and its power to turn criminal law into a tool for surveillance. ^{Footnote 86} With memories of state emergency imposed in the mid-1970s still fresh, feminists vowed to take greater care with future demands lest they be used to curb civil liberties. ^{Footnote 87} Still, every campaign is centered around demands for the State, particularly in the form of legislative reforms. ^{Footnote 88} However, its efficacy and implications have been also questioned consistently. ^{Footnote 89}

This is not to argue that any engagement in the criminal law framework is unwarranted or self-defeating for the cause of protectioning women against sexual violence. Reliance on criminal law and legal reforms to seek social justice can be justified on many counts. The law serves the purpose of declaring practices illegal which were erstwhile considered acceptable in the society. In that sense, the court and the legislature act as platforms to place women’s marginalization on the agenda of society in the hope that the criminalization and the subsequent deterrence will percolate into a change of societal practices. Legal reforms are imperative, for example, where law itself is used as a tool for oppression, as is in the case of the restrictive definition of consent discussed above.

Although the demands and intentions of the feminist movement may not be explicitly carceral, it is undeniable that the unintended consequences of this engagement with the criminal law framework have done considerable damage to women’s sexual autonomy. It is also emblematic of the crisis of a liberal subject which is at the center of criminal law. We argue in the next section how this constant struggle with the State could end, if the feminist movement dropped its exclusive focus on the State and instead engaged with the collective responsibility of society to sustainably address manifestations of structural injustice.