YES MEANS YES: STUDY OF INDIAN RAPE LAWS FROM THE LENS OF AFFIRMATIVE CONSENT STANDARD Dissertation submitted in part fulfilment for the requirement of the Degree of LL.M. Submitted by Supervised by DHRUV DUGGAL Prof. (Dr.) MRINAL SATISH National Law University Delhi (India) 2019 DECLARATION BY THE CANDIDATE I hereby declare that the dissertation entitled “Yes means Yes: Study of Indian Rape Laws from the Lens of Affirmative Consent Standard” submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Dr. Mrinal Satish, Professor (Law), National Law University, Delhi. I further declare that to the best of my knowledge, the dissertation does not contain any part of my work, which has been submitted for the award of any degree either in this University or in any other institution without proper citation. Signature: Dhruv Duggal (38LL.M. 18) National Law University, Delhi Place: New Delhi Date: I CERTIFICATE OF SUPERVISOR This is to certify that the work reported in the LL.M. dissertation titled “Yes means Yes: Study of Indian Rape Laws from the Lens of Affirmative Consent Standard” submitted by Dhruv Duggal at National Law University, Delhi is a bona fide record of his original work carried out under my supervision. Signature: Dr. Mrinal Satish Professor (Law) National Law University, Delhi Place: New Delhi Date: II ACKNOWLEDGEMENT I wish to express my profound gratitude to my respected supervisor, and guide, Dr. Mrinal Satish, Professor (Law), National Law University, Delhi, for his constant help and support. The idea of this dissertation stemmed from one of the lectures delivered by him. His vast knowledge and expertise on the subject helped me a lot during the course of this dissertation. He has always been a source of constant support and inspiration. His accessibility and constant insight into my work assisted me and encouraged me towards the timely and successful completion of this dissertation. He has always been kind with his words of inspiration, his valuable suggestions. I would also like express my gratitude to Prof. (Dr.) Ranbir Singh, Vice-Chancellor, National Law University, Delhi and Prof. (Dr.) G.S. Bajpai, Registrar, National Law University, for their support and assistance, whenever necessary. Finally, I wish to express my appreciation towards my family, and friends, for their constant support, and continuous encouragement. This work would not have been possible without them. III LIST OF ACRONYMS AND ABBREVIATIONS & And AIR ALL INDIA REPORTERS C.r. L.J. Criminal Law Journal CLAA Criminal Law Amendment Act CrPc Code of Criminal Procedure Del Delhi Guj Gujrat IPC Indian Penal Code L. Rev. Law Review OJLS Oxford Journal of Legal Studies OUP Oxford University Press Raj Rajasthan SC Supreme Court of India SCC Supreme Court Cases Tex.Intl. L.J. Texas International Law Journal US United States v Versus Vol. Volume WLR Weekly Law Reports Yale L.J. Yale Law Journal IV LIST OF CASES 1. Bharwada Bhoginbhai Hirjibhai v State of Gujrat, (1983) 3 S.C.C. 217. 2. DPP v Morgan, (1976) A.C. 182. 3. Gajanand Maganlal Mehta v. State of Gujrat, (1985) S.C.C. OnLine Guj 147. 4. Harnarain Singh v. State of Punjab. AIR 1958 Pun 123. 5. Idan Singh v State of Rajasthan, (1976) S.C.C. OnLine Raj 83; 6. In re M.T.S., (1991) 588 A.2d 1282. 7. Madan Gopal Kakkad v Naval Dubey, (1992) 3 S.C.C. 204. 8. Mahmood Farooqui v State (Govt of NCT of Delhi) (2017) S.C.C. OnLine Del 6378. 9. Milind Ambadas Mhaske v State of Maharashtra, (1998) Cr Lj 1357. 10. Pratap Misra v State of Orrisa, (1977) 3 S.C.C. 41. 11. R v Camplin, (1845) 1 Car. & K. 746. 12. R v Fletcher, (1859) Bell C.C. 63. 13. R v Harling, (1938) 26 Cr. App. R. 127. 14. R v Howard, (1966) 1 W.L.R. 13. 15. R v Olugboja, [1981] 3 W.L.R. 585. 16. Rafiq v State of Haryana, (1980) 4 S.C.C. 262; 17. S. Ramakrishna v State, (2009) 1 S.C.C. 133. 18. Sakshi v Union of India, (2004) 5 S.C.C. 518. 19. Sanju Gope v State (1998) Cr LJ 1984; 20. State of Himachal Pradesh v Mango Ram, (2000) 7 S.C.C. 224. 21. State of Uttar Pradesh v Chhotey Lal, (2011) 2 S.C.C. 550. 22. State of Uttar Pradesh v Pappu, A.I.R. 2005 S.C. 1248. 23. Sudesh Jhaku v K.C.J., (1996) S.C.C. OnLine (Del) 397. 24. Tukaram v State of Maharashtra, (1979) 2 S.C.C. 143. 25. Vinod Kumar v State of Madhya Pradesh, (1986) SCC OnLine MP 128. V TABLE OF CONTENTS TITLE Page Number DECLARATION BY THE CANDIDATE I SUPERVISOR’S CERTIFICATE II ACKNOWLEDGEMENT III LIST OF ACRONYMS AND ABBREVIATIONS IV LIST OF CASES V CHAPTER- 1 INTRODUCTION 1-9 1.1. STATEMENT OF PROBLEM 4 1.2. OBJECTIVES OF THE STUDY 6 1.3. RESEARCH QUESTION 6 1.4. RESEARCH METHODOLOGY 7 1.5. CHAPTERISATION 7 CHAPTER- 2 HISTORICAL EVOLUTION OF THE DEFINITION OF RAPE 10-16 CHAPTER- 3 UNDERSTANDING ‘CONSENT’ 17-24 3.1. HISTORICISING CONSENT 17 3.2. EVOLUTION OF CONSENT IN COMMON LAW 18 3.3. UNDERSTANDING CONSENT IN INDIAN PERSPECTIVE 21 CHAPTER- 4 INTERPRETING THE ‘AFFIRMATIVE CONSENT 25-37 STANDARD’ 4.1. HISTORICAL UNDERPINNING 25 4.2. AFFIRMATIVE CONSENT STANDARD: TOWARDS THE ‘YES 28 MEANS YES’ MODEL OF CONSENT VI 4.3. APPLICATION OF AFFIRMATIVE CONSENT STANDARD IN THE 32 STATE OF CALIFORNIA 4.4. CRITICAL ANALYSIS OF THE AFFIRMATIVE CONSENT 35 STANDARD CHAPTER - 5 TRACING THE CRIMINAL LAW REFORMS WITH 38-49 REFERENCE TO RAPE IN INDIA 5.1. THE CRIMINAL LAW (AMENDMENT) ACT OF 1983 38 5.2. THE CRIMINAL LAW (AMENDMENT) ACT OF 2013 40 5.3. THE CRIMINAL LAW (AMENDMENT) ACT OF 2018 44 5.4. ANALYSING THE JUDICIAL DISCOURSE 46 CHAPTER - 6 CONCLUSION 50-52 BIBLIOGRAPHY 53-57 BOOKS 53 STATUTES 53 REPORTS 53 ARTICLES 54 WEBSITES 56 NEWSPAPER ARTICLES 57 VII CHAPTER 1 INTRODUCTION “Women are wholly owned subsidiaries and not independent beings. Rape could not be envisioned as a matter of female consent or refusal… Rape entered the law through back door, as it were, as a property crime of man against man. Woman, of course, was viewed as the property.”1 The above mentioned quote from the book Against Our Will: Men, Women and Rape, aptly describes the entire discourse as it once existed, when it comes to the offence of rape. The patriarchal nature of the society, violence against women, and the stereotypical behaviour of the society are age old concepts that have plagued the society since time immemorial. The offence of rape is malum in se. It is a barbaric act which shakes the very conscience of the society. The offence of rape has existed in our society since time immemorial. In English common law, the concept of rape developed not to protect the person of the women, but to protect the interest of the males that had her ‘possession’ at that particular time. The possession of the women was with the males, father being the one when the women was unmarried and once she was married, the husband. Therefore the crime of rape was considered to be a property crime.2 The offence once committed led to the devaluation of the property (the woman), and resultantly the property would bring in less dowry3. This reflects on the thinking of the society as it was back then, making it crystal clear that women were considered nothing more than a chattel, and the law was not aimed at protecting the person, and freedom of the women but in protecting the interest of the males in the property from sexual exploitation by other men. The term ‘rape’ has been derived from the latin word rapio, meaning ‘to seize’. The offence of rape was therefore, considered to be ravishment of the women, and forcible 1 SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975). 2 Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, 58 Vand. L. Rev. 1321, 1322 (2005). 3 Id. at 1328. 1 seizure of her person.4 The modern day elements that make the offence of the rape were absent in the ancient times, as the concept of rape was seen from the narrow lens of property. The violent act of rape was not considered against the body of the women but an offence of theft against the male who was her legal guardian.5 In terms of the principle of harm, the offence was against the legal guardian of the women. Under the ancient laws, as they existed in Babylon, it was legal for people to capture a woman outside the limits of the society, but not within.6 A perfectly accepted way of obtaining a wife was by paying a certain sum to the father of the woman. The price was generally fixed to be 50 pieces of silver.7 Therefore, rape from the viewpoint of the father was considered as ‘theft of virginity, an embezzlement of his daughter’s fair price in the market’.8 A lot of emphasis was laid on the virginity and chastity of the woman, which explains the present day stereotypes that guide the adjudication of cases pertaining to the offence of rape in India and elsewhere. However, the law was different when it came to a married woman. Shockingly enough the married woman was also blamed for the offence that took against her person and as a result she had to bear the burden of the unlawful act, and she was punished accordingly.