The Consent Gap: Why India’s 'Progressive' Laws Still Fail Survivors

(This article is a collaborative proposal by a lawyer and a psychologist to address the legal and psychological gaps in how Indian courts interpret and respond to consent.)India has undergone a disturbing series of court rulings on sexual violence, echoing a chilling déjà vu of the post-Nirbhaya era. Since 2012, laws have been amended and punishments have been strengthened but the deep-rooted misogyny that distorts the interpretation of the law still persists. The legal system does not exist in a vacuum; it upholds and mirrors the norms of the society it operates within. Patriarchy not only impacts those who are the receiving end of justice, but also the ones who bestow it.A spate of recent High Court decisions have exposed the fractured and inconsistent judicial understanding of consent. The Allahabad High Court ruled that a man grabbing a minor girl’s breasts and tearing her pyjamas amounted to “aggravated sexual assault,” but not an “attempt to rape,” suggesting that only violent penetration meets the legal threshold for serious sexual offences.In Chhattisgarh, a husband accused of raping and assaulting his wife, leading to her death — was acquitted as the court held that her being over 15 made consent irrelevant under the outdated marital rape exception. In another case from the same state, a court overturned a conviction under the Protection of Children from Sexual Offences (POCSO) Act, framing a minor survivor’s prolonged silence as consent while ignoring how trauma, fear, and powerlessness often silence victims, especially children.These are not legal anomalies but symptoms of a deeper cultural malaise.To understand why such violence persists despite strong laws, we need to look beyond the letter of the law and examine the societal fabric within which these behaviours are normalised, excused, or ignored.Delhi Court Frames Sexual Harassment Charges Against Brij Bhushan Sharan SinghThe Bharatiya Nyaya Sanhita (BNS), 2023, defines 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.” On paper, this is a progressive and affirmative definition, emphasising free will, specificity, and communication. Yet, courtroom interpretations often distort or ignore this clarity, either by falling back on outdated exceptions or by disbelieving victims who do not conform to stereotypical responses.This is not India’s narrative alone. France’s recent Gisèle Pelicot judgment exposed a major flaw in the country’s legal definition of consent and sparked major public outrage. French law, until recently, did not require affirmative consent and instead focused on proving coercion, threat, or violence to establish rape. This comparison highlights that India's legal standard on paper is significantly more progressive than many jurisdictions. But a progressive definition means little without a judiciary equipped to interpret it with cultural and psycho-social nuance.Consent is not just a legal checkbox — it is shaped by upbringing, access to information, cultural narratives, and power dynamics. In India, patriarchal norms equate masculinity with control, dominance, and emotional stoicism. Common expressions like “Mard ko dard nahi hota” (men don't feel pain) or “Ladkiyon ki tarah mat ro” (don't cry like a girl) along with the glorified (and widely debunked) “alpha male” ideal, reinforce rigid gender roles and portray masculinity as a performance rooted in power.These are not harmless colloquialisms, but deeply ingrained scripts that deny young boys emotional literacy, and reward aggression and entitlement. Within such a worldview, consent becomes negotiable or worse, irrelevant.Feminist movements have rightfully focused on women’s empowerment and justice. However, they have struggled to build a space where men feel equally included. As a result, many young men are left to navigate this social change alone and grow up perceiving feminism as a threat to their identity. Within psychology, this phenomenon is called “identity threat” where progress for one group feels like a loss for the other.As part of reactionary politics, many of them seek validation within exclusionary spaces like the ‘manosphere’, where their biases are confirmed and insecurities are weaponised. Left unaddressed, this dynamic breeds entitlement, hostility, and, ultimately, a disregard for consent.Why is India Yet to Label Marital Rape as 'Rape' When Most Other Countries Do?The real challenge lies not only in defining consent in law, but understanding how it is experienced, negotiated, and violated in real life; including the emotional, social, and structural forces that shape human behaviour. The Allahabad High Court’s affirmative recognition in Raghav Kumar vs State of UP that consent obtained through fear or misconception is invalid remains an exception, not the rule. What we need is systemic, interdisciplinary reform. Mandatory trauma-informed, gender-sensitisation training for judges must go hand in hand with legal reform. Judicial colleges must collaborate with psychologists, social workers, and gender scholars to equip judges in interpreting consent with a contextual understanding.Only then can legal interpretation be grounded not only in statute but in lived experience. While increasing women’s representation in the judiciary is crucial, involving emotionally literate, gender-sensitive men within the system is equally vital.Above all, justice must be reimagined not solely as punitive but as reformative — acknowledging patriarchal conditioning, emotional neglect, and systemic injustices as central to conversations around consent. Only then can we begin to close the gap between what the law promises and what survivors truly experience.(Wamika Sachdev is a lawyer and researcher of international law, human rights, armed conflict, and gender. Mahi Goyal is a narrative therapist, author, and researcher working on decolonising mental health, with clinical experience across diverse contexts. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)Violence of Any Form is Unacceptable. India Must Criminalise Marital Rape

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The Consent Gap: Why India’s 'Progressive' Laws Still Fail Survivors

A spate of recent High Court decisions have exposed the fractured, inconsistent judicial understanding of consent.

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Topics: Sexual Assault Indian law judiciary