Doctrine Of Consent In Sexual Offences: Law And Judicial Practice In India
- IJLLR Journal
- 2 hours ago
- 2 min read
Dr. Jai Prakash Kushwah, Advocate, M.P. High Court, Gwalior Ph.D.(Law an Inter-disciplinary Research), Ph.D.(Geographical Crime a Multidisciplinary Research) DLIL, LL.B., LL.M.(Medallist),B.Sc. (Maths), MA (English), MA(Geography)IGD Bombay, EGD Bombay
Suraj Pratap Singh Kushwah, Advocate, M.P. High Court, Gwalior LL.B., LL.M.(Gold Medallist),B.E. (Electronic Communication). CLAT Meritorious
ABSTRACT
The doctrine of consent constitutes the core foundation for determining criminal liability in cases of sexual offences. In criminal jurisprudence, consent functions as the decisive factor that distinguishes lawful sexual relations from acts that amount to sexual violence. Indian criminal law recognises that valid consent must be free, voluntary, informed, and unequivocal. The legal framework governing consent has evolved through statutory provisions and judicial interpretation, particularly under the Indian Penal Code, 1860 and the recently enacted Bharatiya Nyaya Sanhita, 2023, which continue to emphasise the absence of consent as a fundamental element in the offence of rape. Over time, courts have broadened the interpretation of consent to address complex situations involving coercion, deception, abuse of authority, and unequal power relationships.
Judicial pronouncements of the Supreme Court of India and various High Courts have played a pivotal role in clarifying the meaning and scope of consent in sexual offence jurisprudence. Courts have examined issues such as consent obtained under misconception of fact, false promises of marriage, intoxication, or circumstances where the victim lacks the capacity to provide valid consent. In the landmark case of Kaini Rajan v. State of Kerala, the Supreme Court held that consent involves an active and reasoned decision and cannot be equated with passive submission under fear or pressure. Similarly, the Court has consistently observed that the absence of physical resistance does not necessarily indicate consent, as submission may occur due to fear, coercion, or psychological pressure.
The present study adopts a combined doctrinal and empirical approach to examine the doctrine of consent in sexual offences within the Indian criminal justice system. The doctrinal component analyses statutory provisions, judicial precedents, and evolving legal standards governing consent. The empirical component examines selected trial and appellate court decisions to understand how courts determine consent in practice, the evidentiary challenges encountered during adjudication, and the patterns of judicial reasoning in establishing criminal liability. Through this integrated approach, the study seeks to evaluate the effectiveness of the existing legal framework and contribute to a more nuanced understanding of consent in contemporary sexual offence jurisprudence in India.
Keywords: Consent; Sexual Offences; Criminal Liability; Rape Law; Judicial Interpretation; Victim Autonomy; Misconception of Fact; Bharatiya Nyaya Sanhita, 2023; Evidence in Rape Trials; Indian Criminal Justice System.
