INTRODUCTION:
In sexual assault, the line between ‘consent’ and ‘submission’ is razor thin. Consent is not required for submission. If a person engages in sexual intercourse and the girl did not agree to it, but when she saw no way out and submitted herself before the male, it is referred to as ‘submission’ rather than ‘consent’. There is a distinction between consent and surrender. Every consent entails surrender, but the inverse is not true. Helplessness in the face of unavoidable coercion cannot be deemed consent in the legal sense. Consent requires the use of intelligence based on awareness of the importance and moral impact of the act.
CONCEPT OF CONSENT AS WELL AS SUBMISSION EXPLAINED WITH A CASE LAW:
The Indian Contract Act of 1872 defines consent as the agreement of two or more individuals on the same matter and in the same understanding. According to this act, consent must be free from coercion, undue influence, fraud, misrepresentation, or mistake. Consent is considered valid when it is given independently without any external factors or threats. Additionally, Section 375 of the Indian Penal Code defines consent as a clear and voluntary agreement expressed through words, gestures, or any form of communication, indicating willingness to participate in a specific sexual act.
Consent plays a crucial role in determining rape cases. Engaging in sexual intercourse without valid consent is considered rape under the law. The determination of consent should be made by the courts after carefully examining the circumstances of each individual case. There is no fixed formula to determine whether the consent given by a victim is voluntary or based on a misconception of fact. In 2013, the law on rape was amended to make it more realistic, following the Nirbhaya case.
In recent years, a new term, “passive submission,” has emerged. However, its meaning is more complex than it appears. The concept of submission implies being willing to conform to the authority or will of others, surrendering control or options to the other person. However, this definition does not fully capture its legal implications. The term “passive submission” originated from observations of wolf behavior. It describes a situation where a subordinate wolf, faced with a dominant wolf’s threat, exhibits submissive behavior by tucking its tail, lying on the ground, and exposing its belly. This behavior is not consensual but rather an act driven by fear for survival. This provides some understanding of the term, but Indian law does not explicitly address the concept of passive submission. The closest reference is found in the second explanation of Section 375 of the Indian Penal Code, stating that a woman’s lack of physical resistance to penetration does not imply consent to sexual activity. However, this only addresses the absence of physical resistance as a sign of denial, without directly addressing passive submission. A judgment by a bench led by Justice Dipak Misra emphasized that consent for a sexual act requires voluntary participation based on informed decision-making, understanding the significance and moral nature of the act, and making a conscious choice between resistance and assent. Consent is considered to be free when a woman agrees to engage in a particular action while fully possessing her physical and moral power to act as she wishes.
It can be expressed or implied, depending on the circumstances surrounding the case. However, it is important to distinguish between consent and submission. Simply surrendering in the face of inevitable force is not considered consent in the eyes of the law. In the case of Rao Harnam Singh, Sheoji Singh v. State, the accused’s tenant, Kalu Ram, was coerced by the accused Rao Harnam Singh to provide his 19-year-old wife for sexual intercourse with Rao Harnam Singh and his guests during an entertainment party. The girl strongly opposed this demand but was forced to comply under the pressure of her husband. During the night, three accused individuals, Rao Harnam Singh, Ch. Mauji Ram, and Balbir Singh, raped her, and she died shortly afterward. Her screams were heard by some nearby advocates. In response to the defense’s argument that the girl willingly participated and consented to the acts, the High Court distinguished between ‘consent’ and ‘submission’: Mere helpless resignation in the face of compulsion, passivity, non-resistance, or giving in when the volitional faculty is clouded by fear or compromised by duress cannot be considered ‘consent’ under the law. For consent to be a valid defense against an allegation of rape, it requires the woman’s voluntary participation. This participation must stem from an exercise of intelligence, understanding the significance and moral nature of the act, and making a free choice between resistance and agreement. Submitting to an act under the influence of fear or terror does not constitute consent. While every act of consent involves submission, the reverse is not true, and mere submission does not imply consent. A woman is considered to have consented only when she freely agrees to submit herself while fully possessing the physical and moral power to act as she desires. Consent implies the exercise of an unrestricted right to refuse or withhold agreement to what is being consented to. It is always a voluntary and conscious acceptance of what another proposes to do, as agreed upon by the woman herself.
CONCLUSION
After carefully examining the distinction between consent and passive submission, it becomes clear that passive submission should not be mistaken for consent. Those who commit the grave crime of rape should not be acquitted based on the defense of passive submission as a justification for their actions.
However, it is important to acknowledge that in certain cases, where no other forms of force or threats to the life or physical well-being of the victim or any related individuals are apparent, passive submission alone may be considered as a form of valid consent. This is my personal opinion. It is worth noting that such a perspective arises from the recognition that there are individuals in society who may exploit this concept for their own malicious purposes, such as harming someone with the intent to defame them or seeking personal vengeance.
It is crucial for the legal system to carefully analyze the circumstances of each case to determine the presence or absence of genuine consent. This involves considering factors such as the absence of external coercion, the individual’s level of autonomy and understanding, and the voluntariness of their participation. By doing so, the courts can ensure that justice is served, protecting victims and holding perpetrators accountable for their actions.
REFRENCES
https://lawlex.org/lex-pedia/is-passive-submission-really-consent/19999
https://thelawmatics.in/sexual-offences-consent-versus-submission/
https://indianexpress.com/article/opinion/columns/affirmative-consent-sexual-assault-cases-8311698/
https://thewire.in/gender/law-no-may-not-actually-mean-no
National law school law journal, volume 14 issue 1, 1|1|2018, revisiting ‘consent’ under Indian rape law by Shreya Shree.
https://www.encyclo.co.uk/meaning-of-passive_submission
Rao Harnarain Sheoji Singh vs the state, AIR 1958 P H 123, 1958 Cril J 563
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