Rape Adjudication in India - Mapping the Discussion on Consent in Indian Courts

The December 16, 2012, Delhi gang-rape case sparked a sorely needed debate in India on the issue of consent in rape law, leading to the Verma Report and the 2013 Amendment. This amendment brought about some key reforms in the rape law, such as: an expansion in the definition of rape (beyond penile-vaginal intercourse) and a new positive definition of ‘consent’. However, by Parliament’s decisions such as retention of the marital rape exception, refusal to make the provision of rape gender-neutral, and retention of the death penalty, this amendment fell short of the goals set by the Verma Report. In this seminar, I will discuss the methodology I adopted and some key findings from my DPhil research. My DPhil thesis highlights how culturally dominant notions, underlying preconceptions, and prejudices about rape continued to shape the outcome of rape cases in India. To analyse the post-2013 judicial discourse pertaining to rape, I studied a total of 1,910 judgments – 1,664 trial (Delhi and Kerala) and 246 appellate (all High Courts across India) judgments - over a period of nine years, from April 2013 to March 2022. The data analyses expose that the 2013 Amendment and the new definition of consent is rarely applied. To reach the verdict, the courts continue to rely on stereotypes such as lack of resistance, complainant’s ‘unnatural’ conduct, shame-honour dichotomy etc. The judges are unclear about what constitutes ‘False Promise to Marry’ (FPM) cases and merge the categories of ‘non-consensual sex’ and ‘tainted consent due to FPM’. A crucial finding is that even though majority of the complainants turned hostile in the courtroom, there has never been a judicial enquiry into the reasons for the complainant withdrawing support from the prosecution, such as possible coercion. Thus, the 2013 statutory legal changes were not sufficiently powerful to shift the narrative to a robust discussion on consent or dislodge deep- seated stereotypes amongst judges. 

Aradhana is the Lord and Lady McNair Early Career Fellow in Law at Somerville College, teaching Criminal Law, Constitutional Law and Tort Law. She is the Director of Policy Submissions at the Oxford Human Rights Hub.

Her doctoral research, supervised by Professor Laura Hoyano and funded by the Gopal Subramaniam OICSD scholarship, examined how rape adjudication takes place in India. Prior to taking up doctoral studies, she read on the Bachelor of Civil Law (BCL) programme and the MPhil in Law at Oxford as a Cornelia Sorabji Scholar. She also holds a Bachelor of Laws (LL.B.) degree from the National Law University, Delhi (India). She was awarded Modern Law Review Scholarship in 2021 and the Mike Redmayne Award for research into Criminal Law and the Law of Evidence (MLR) in 2022. She was awarded the 'Best Doctoral Student Prize' at the Society of Legal Scholars’ Annual Conference 2023.