Although the word ‘Presumption’ is ubiquitous to the Indian Evidence Act of 1872 (hereinafter referred to as ‘the Act’) it has not been defined in the Act. The author of the Indian Evidence Act, James Fitzjames Stephen, in his book ‘A Digest of the Law of Evidence’ defines presumption as “A rule of law that Courts and judges shall draw a particular inference from a particular fact, or particular evidence, unless and until the truth of such inference is disproved ”. What a presumption exactly does is that it calls for proof for something which it negates so that the things can be made probable.
In other words, it puts a duty on the person, against whom the presumptions are being made, to provide evidence to reverse the presumption which would otherwise result in an inference being drawn based on the presumption. Before the judges can make a particular presumption they require the party in whose favour the presumption is being made to adduce certain proofs. But the nature of the proof isn’t specified i.e. whether the proof should be beyond a reasonable doubt, based on a preponderance of all the evidence or any other nature of providing the proof must be followed. The only situation which specifies that the proof must be beyond a reasonable doubt is when a ‘presumption of innocence’ is made, but this is considered to be an addition to the rule of presumption and is not the general norm.
The Indian Evidence Act grants the court power to make various presumptions. The court under this Act can make presumptions concerning the death of a person, presumptions as to the authenticity and validity of certain documents, presumptions about the legitimacy of a child, etc. However, the presumption we will be focusing on in this paper is the one stated in Section 114A of the Act. Under this section, if a woman has been raped and in her testimony or evidence she contends that she hadn’t consented to the sexual intercourse, the court will presume that there was no consent. This section puts the burden on the accused to prove that there was consent. For this section to apply to a case certain element must be satisfied. The testimony of the prosecutrix must indicate that there was sexual intercourse, the main contention is whether there was consent or not, and lastly that the prosecutrix states that she didn’t consent to the act.
In this paper, we will analyze Section114A of the Act from a feminist lens and throw light upon the dilution of this section due to some recent case laws.
HISTORY OF SECTION 114A
Section 114A was not originally present in the Indian Evidence Act, instead, it was added in the year 1983 under the Criminal Law (Amendment) Act, 1983.
The conditions which lead to the Parliament passing this amendment were a result of the Supreme Court decision in Tuka Ram and Anr. Vs State of Maharashtra is colloquially known as the Mathura rape case. In this case Mathura an orphaned young girl, aged 14-16 lived with her brother Gama. She was under the employment of Munshi, while working for Munshi, Mathura developed a relationship with Ashok, Nunshi’s cousin. On March 26, 1972, Gama complained that Mathura had been kidnapped by Munshi and Ashok. All the parties to the case were asked to report to the police station and once everyone started leaving Tukaram, the head constable and Ganpat directed Mathura to wait in the police station. They then bolted the doors and switched off the lights of the police station.
Thereafter, Ganpat took Mathura to a chapri (temporary structure) and raped her, and after that Tukaram tried to do the same but was unable to do so due to intoxication. Since the doors had been bolted and Mathura was still inside a crowd started gathering outside the police station calling for her, hearing this Tukaram came out and announced that Mathura had already left. Shortly after, Mathura came out of the police station and claimed that she had been raped by Ganpat.
The Sessions Court acquitted the two accused for two major reasons. The first being that the testimony given by Mathura was “riddled with falsehood and improbabilities” and that she was a “shocking liar”. The other reason given by the court was since Mathura was habituated to sexual intercourse, as deduced from the medical examination, she might have had sexual intercourse with Ganpat. Furthermore, when she came out of the police station, realizing that Ashok and Nunshi were in the crowd and she might get caught, to seem virtuous she cried out that she had been raped. The High Court of Bombay reversed the acquittal of the Sessions Court. However, the accused were acquitted once again in the Supreme Court. The Supreme Court in agreement with the reasoning given by the Sessions court also added that there were no injury marks on the body of Mathura. Additionally, since there was no retaliation from Mathura while she was being raped and no alarm was raised by her she consented to sex.
The judgment passed by the Apex Court of the country was a huge blow to the women of our country. It was plagued with a myriad of inappropriate sexist comments made by the court, for example, deciding whether Mathura was raped or not based on her promiscuity rather than the facts and circumstances of the case. This judgment also placed an enormous amount of burden on the victim to prove that she did not consent to sexual intercourse. This case was monumental as it sparked widespread public protests for the very first time about rape in India and lead to the sexual assault laws being reformed. It also gave rise to a movement for the empowerment of women in India and helped people see the gender-based violence which woman had to face daily. These protests and movements lead to the passing of the Criminal Law (Amendment) Act, 1983, and thus the introduction of Section 144A in the Indian Evidence Act. This section transferred the burden of proof from the victim to the accused.
DILUTION OF RAPE LAWS
The other infamous case that leads to reform in rape laws in our country was the Nirbhaya rape case. This case also resulted in protests across the country and the result of these protests was the introduction of the Criminal Law (Amendment) Act, 2013. This amendment introduced the concept of affirmative consent by defining consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act.”
This definition further clarified that the absence of physical resistance was not supposed to be considered as consenting to the act. Although these reforms prima facie seem to be strengthening and favouring a rape victim, the implementation of these reforms has been starkly different from their intended outcome.
The reason behind this is the poor, unexpected implementation of this law, due to the archaic interpretation of the word ‘consent’ by the court in the case of ‘Mahmood Farooqui vs State (Govt. of NCT of Delhi)’. In this case, the complainant was an American Ph.D. student who met Mahmood Farooqui several times as a part of her research. One night Mahmood Farooqui invited the complainant to accompany him and his wife to a wedding. When the complainant arrived Farooqui was intoxicated and forcibly performed oral sex on her.
The complainant told Farooqui that she didn’t want to engage in oral sex but he kept pulling her underwear down. She was forcefully pinned down by Farooqui and as soon as it was over she left the house. And in an email to Farooqui, the complainant said “I told you many times I didn’t want to. But you did become forceful. I went along because I did not want things to escalate… I was just afraid that something bad would happen if I didn’t … it was because of pressure and your force physically on me.” Despite having this evidence the accused was acquitted by the court.
The court in this case diluted the concept of consent by giving a new interpretation to it. The first interpretation which was given by the court was based on the Bollywood narrative that it was not uncommon, as seen from the instances of female behaviour that a feeble ‘no’ might mean ‘yes’. To justify this interpretation the court stated that it might be different if the parties were strangers but if the parties were known to each other and had been physical before it might be difficult to decide whether a feeble ‘no’ was the denial of consent. Even after all the reforms which have come into place since the Mathura case, the court while interpreting consent involved the character of the woman instead of basing their decision on the facts and circumstances.
Thus, in this case, the court used the characteristic of the complainant, that she was educated, against her by creating a separate category of women who are academically proficient and familiar with various ways and systems of the world. The court stated that if a woman belonged to that category a feeble ‘no’ did not always mean denial. The court completely disregarded Section 114A of the Indian Evidence Act and placed an extra burden of proof on the victim that she must prove that the accused heard her ‘no’ and that it was communicated to the accused. If she could not do that, then her only other option was to show physical harm was inflicted upon her even though the law clearly states that the absence of physical resistance does not lead to consent.
Hence, this case blurred the exact meaning of consent. As a result of this case, the application of Section 114A was also weakened in the future case which set a dangerous precedent.
ANALYSIS FROM A FEMINIST LENS
Catherine Alice MacKinnon is a feminist and a legal scholar who in her book ‘Marxism, Method, and the State: Toward Feminist Jurisprudence’ examines the concept of consent in our society which is highly sexist and male dominant. Mackinnon talks about how the dynamic of submission plays an important role in the inequality between men and women and also how the law acts as a facilitator for such dominance. According to her, the state is a male in the feminist sense and the law treats and sees women in the same manner as men do. This liberal state has, by using its authority constituted the order of the society in the interest of men by legitimizing norms and their relation to society.
MacKinnon while observing the concept of consent believes that the laws relating to rape divide women into different spheres of consent. The spheres are distinguished based on how much say does a woman have over the sexual access a man has over her. She is an ardent believer of the fact that rape laws do not exist to allow women to have control over their sexuality because if that were true marital rape would be criminalized.
MacKinnon lists various types of women and the connotation the state puts concerning them, for example, ‘good girls’ like children are unconsenting while ‘bad girls’ of promiscuous nature are consenting and prostitutes are unrapable. By doing this MacKinnon highlights how the tradition of taking into consideration the character of a woman is still prevalent while deciding a case of rape. She also emphasizes that these connotations are based on the male perspective on women. This can be seen in the Mahmood Farooqui case in which the court used the characteristic of the women that she was educated to put an excess burden on her to prove that she did not consent to sexual intercourse.
Since the fact that the state is operating in an inherently patriarchal society can be seen from the observations made above, Section 114A must also be bound to follow the norms of the society in which it exists. From the face of it, the section can be deemed to be a provision that empowers women as it puts the burden of proof on the accused and favours the victims. But as pointed out before, the application of this section is being weakened by certain court rulings and its heavy reliance on the consent.
Moreover, the concept of consent which this section is based on has been questioned by the feminist theory of Catherine Alice MacKinnon. She states that consent is not a meaningful concept as the communication made by the women is under the condition of inequality as our society is predominantly patriarchal. According to her, the law distinguishes sexual intercourse based on a woman’s consent to the act as well as how the man committing the act of rape comprehended it. Rape like any other criminal act requires a mens reas, thus bringing into perspective the man’s mental state as to what a reasonable man would have understood in the given circumstances.
This is deeply flawed because what injury the act caused lies in the meaning of the act to its victim, but what is being taken into consideration to test the criminality of the act is the meaning of the same act to the assailant. Therefore, the crime of rape is determined based on the male standpoint and if seen from a doctrinal perspective sets the principle that whether the female felt violated or not is determined by a man’s perception.
Thus, various reforms have been made to empower women using the legal system, Section 114A of the Indian Evidence Act being one of them but these reforms have completely failed to do so. The observations made by Catherine MacKinnon about the patriarchal society cannot be disregarded or be termed as radical. Section 114A clearly states that if the victim states that there was no consent the court should make the presumption that there wasn’t any. Yet it has still been disregarded in the Mahmood Farooqui case, this is an example of the weakening of the application of this Section. I believe the reason that this section is being weakened is following the contention made by MacKinnon that our society is highly patriarchal and we operate on the male perspective.
Instead of blindly following the statute and the principle set in Section 114A, the court, like MacKinnon stated, took into perspective the mindset of the assailant in the completely irrelevant case. The court decided in the case of whether the complainant was violated or not based on the mindset and perspective of the male and completely disregarded the consent part of the crime. This case has gone to prove that the concept of consent even though has drastically evolved theoretically but still struggles to change the mindset of the legal community who are even now operating based on the meaning of consent which was used 35 years ago in the Mathura rape case.
The courts that are made by men also dominated by them, will as a result protect the interests of men only. Even though the world has moved leaps and bounds, yet the mindset of men in India who are in power has been stuck in the Victorian era and has followed their ideology.
These men in power have found various other ways to protect other male counterparts by overlooking the statutes and negating the advancements made in rape laws. A case like Farooqui has shattered the years of feminist jurisprudence and understanding of consent and rape laws from a gendered perspective. What this society in which patriarchy has been deeply embedded requires is not only the legal reforms that empower women but also a deep introspection about how gender equality could be made a reality.
- Catharine A. Mackinnon, Reflections on Sex Equality Under the law, 100 YALE L.J. 1281, (1991).
- Catharine Mackinnon, Feminism, Marxism Method And The State: Toward Feminist Jurisprudence, Journal of Women in Culture and Society 641, (1983).
- James B. Thayer, Presumptions, and the Law of Evidence, 3 HARVARD L.R. 141, (1889).
- JAMES FITZJAMES STEPHEN, A DIGEST OF THE LAW OF EVIDENCE 2 (Macmillan & Co., 1876).
- Mahmood Farooqui vs State (Govt. of NCT of Delhi), CRL.A. 944/2016.
- Mukesh and Anr. Vs State for NCT of Delhi & Others, C.A. 607-608/2017.
- The Indian Evidence Act, 1872
- The Indian Penal Code, Act No. 45 of 1860
- Tuka Ram and Anr. The Vs State of Maharashtra, AIR 1979 185.
 JAMES FITZJAMES STEPHEN, A DIGEST OF THE LAW OF EVIDENCE 2 (Macmillan & Co., 1876).
 James B. Thayer, Presumptions and the Law of Evidence, 3 HARVARD L.R. 141, 165-66 (1889).
 The Indian Evidence Act, 1872, Section 107-108.
 The Indian Evidence Act, 1872, Section 79-90A.
 The Indian Evidence Act, 1872, Section 112.
 The Indian Evidence Act, 1872, Section 114A.
 Tuka Ram and Anr. Vs State of Maharashtra, AIR 1979 185.
 Mukesh and Anr. Vs State for NCT of Delhi & Others, C.A. 607-608/2017.
 The Indian Penal Code, Act No. 45 of 1860, Section 375, Explanation 1.
 Mahmood Farooqui vs State (Govt. of Nct of Delhi), CRL.A. 944/2016.
 Catharine Mackinnon, Feminism, Marxism Method And The State: Toward Feminist Jurisprudence, Journal of Women in Culture and Society 641, 636-652 (1983).
 Catharine A. Mackinnon, Reflections on Sex Equality Under law, 100 YALE L.J. 1281, 1289 (1991).