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October 5, 2017

The terms of consent

  • The recent judgment of the Delhi High Court in the case of Mahmood Farooqui v. State (Govt of NCT of Delhi) is a stark illustration of the law’s resistance to change. The stickiness of law embedded within the dominant social, cultural and sexual norms often defies the logic and objective of legal reforms, leaving us with definitely more law, but hardly more freedom or justice. In 2013, significant amendments were made to the rape law provisions in the Indian Penal Code, 1860 (IPC), including the introduction of the definition of consent in rape cases at the behest of feminists. But the high court, with its anti-feminist interpretation, has completely negated the objective and intent of the definition of sexual consent.

Conservative interpretation

  • In overruling the trial court decision delivered last year (which radically recognised rape as loss of control over one’s sexuality), the high court has yet again established the rigidity and fixity of the conservative legal framework. What we are left with are the same old stereotypes of an ideal rape victim, real rape, real resistance and true consent.
  • The 2013 amendments defined consent as “an unequivocal voluntary agreement when a woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.” Absence of physical resistance, it is clarified, would not by itself amount to consent. The objective behind the incorporation of this definition in rape law is to make woman the subject of law. Without the woman’s communication of “willingness to participate”, the “unequivocal voluntary agreement” which constitutes consent between sexual partners cannot be effected.
  • This definition is placed alongside the expanded meaning of rape. The 2013 amendments also introduced clause seventhly in Section 375 which states that a man would be said to have committed rape, if the woman “is unable to communicate consent.”
  • In its narrow conception, this may refer to situations when one is not able to communicate due to some physical or mental infirmity. But broadly construed, this can also include situations where the woman is not given the space to communicate and be heard and therefore she is unable to communicate. The latter reading of the clause strengthens the definition of consent. When read with the requirement of “unequivocal voluntary agreement”, it mandates that sexual acts are not performed in callous disregard of the woman’s desire. In other words, it would require that in sexual interactions, the woman is assured the space and time of forming and communicating consent for specific sexual acts.

Feminist shift

  • Within this understanding, the burden of reaching the “unequivocal voluntary agreement” is equally shared by the sexual partners. In as much as the woman is supposed to express willingness to participate in the act, the man is also required to be responsible and sincere in understanding and appreciating what is being communicated. Far from appreciating this radical rupture in understanding consensual sexuality, the Farooqui verdict comes nowhere close to imagining freedom for the woman in sexual interactions. Instead, the feminist shift in the jurisprudence of consent stands undone in multiple ways.
  • Resisting feminist reforms, the verdict displaces the woman and reinstitutes the man as the subject of law. At the heart of the court’s reasoning was not what the woman said, but what the man understood: “even if the act was not with her consent, she actually communicated something which was taken as a consent by the appellant.” The decision thus marked an erasure of the woman’s voice in matters concerning her sexuality.
  • In creating the category of “assumed consent”, the verdict re-inscribes male subjectivity in the domain of sexual consent. It reinforces the male privilege to assume consent based on dominant perceptions of the woman’s behaviour and reactions.
  • In its shocking endorsement of the misogynistic and sexist idea that “no” may mean a “yes”, the court completely failed to appreciate the import of the “affirmative model” of consent. Describing sexual interactions as “act of passion, actuated by libido”, the court in a regressive and reductive move almost characterises sexuality as a racy affair of confused desires which becomes all the more difficult to grasp on account of differences in gender relations. In this framework, a disproportionate burden is placed on women (particularly, “intellectually/ academically proficient” women) to be loud (not feeble), assertive (not hesitant) and display “real resistance” (not feeble disinclination).

Gathering clouds over West Asia

  • West Asia is in a period of heightened uncertainty. In the Levant, regional powers are scrambling to fill the vacuum created by the steady dismantling of the Islamic State’s sham caliphate across Syria and Iraq. Kurds, buoyed by their pivotal position in this race to Raqqa, have held an independence referendum, drawing the ire of their Iraqi, Turkish and Iranian neighbours, with every chance of a conflagration in disputed, oil-rich areas such as Kirkuk. Turkey continues its authoritarian descent, as its relations with Europe grow sourer by the day. In the Persian Gulf, a crisis within the Gulf Cooperation Council (GCC), pitting Saudi Arabia and the United Arab Emirates against maverick Qatar, has entered its sixth month, with no sign of resolution. Within Saudi Arabia, the young and ambitious heir to the throne, Mohammed bin Salman, is experimenting with an unpredictable mix of reform and repression, with women permitted to drive at the same time as dissident poets, clerics and intellectuals are carted to jail.

October milestones

  • However, the biggest shock of all may lie ahead of us. The Joint Comprehensive Plan of Action (JCPOA), a nuclear deal agreed between Iran and six major powers, will celebrate its second anniversary on October 18. It was, and remains, a landmark piece of diplomacy, which recognised Iran’s right to enrich uranium in exchange for a battery of tough, but time-bound, limits on nuclear activity. Through an adroit mixture of pressure, incentives and dogged diplomacy, it defused a crisis that had burned since the 1990s, threatening to spiral into a war in the 2010s. Nevertheless, conservative forces in Israel, the Arab world, and the U.S. denounced the agreement. They complained that it did not address Iran’s non-nuclear behaviour, such as support for Hezbollah and other militant organisations, and that the “sunset” clauses, which progressively relax the constraints on Iran over the next three decades, were too generous.
  • Last November, one of these critics won the U.S. presidency. In his inaugural speech to the UN General Assembly, Donald Trump called the deal “one of the worst and most one-sided transactions the United States has ever entered into”. Mr. Trump and members of his administration have repeatedly, but falsely, claimed that Iran is violating the agreement. On October 15, he must “certify” Iran’s compliance. If he refuses to do so, it would open the way for the U.S. Congress to re-impose sanctions on Iran, which would automatically violate the agreement.
  • If Mr. Trump tears up the agreement, all is not necessarily lost. In a recent interview, Iranian Foreign Minister Javad Zarif noted that Europe’s reaction “will have extremely important ramifications for the future of the deal”. The U.K., France, Germany and the European Union have all expressed their categorical support. If the U.S. re-imposes so-called secondary sanctions, which cover foreign companies, Europe would most likely take legal and diplomatic steps to protect its substantial commerce with Iran, even at the cost of a transatlantic crisis.
  • In the first half of this year alone, EU-Iran trade stood at around $12 billion, a 95% increase over the same period last year. This is roughly thirty times larger than U.S.-Iran trade. European banks, manufacturers and energy companies have also signed dozens of major agreements with Iran over the past year. The EU has jurisdiction over the SWIFT network for cross-border banking transactions. Iran was cut off from this network for four years, but Brussels would resist any U.S. demands to do so again. China, Iran’s main trading partner, and Russia, Iran’s military ally in Syria, would defy U.S. sanctions with even greater enthusiasm. In September, China provided a $10 billion line of credit to Iran’s banks, denominated in euros and yuan, with another $15 in infrastructure projects. In short, it would be virtually impossible to rebuild today the broad, multinational sanctions regime that helped push Iran to the negotiating table during 2013-15. If Iran were therefore persuaded that its re-integration into the world economy could continue regardless, this would be a powerful incentive for Tehran to abide by the JCPOA.

The other scenario

  • If the deal collapses, Tehran is unlikely to expel inspectors entirely, as Iraq did in 1997, or withdraw from the Nuclear Non-Proliferation Treaty (NPT), like North Korea in 2003. Such steps would undercut Iran’s professions of peaceful intent and cede the moral high ground. Iran would, however, consider re-starting the nuclear build-up that it had halted after an interim deal in November 2013. Prior to this point, Tehran was rapidly accumulating centrifuges and stockpiles of enriched uranium, such that it could “break out” – accumulate enough fissile material for a nuclear device – within a few months, had it chosen to do so. Absent diplomacy, Iran might have shrunk that time to weeks or days, which would have made it hard – perhaps prohibitively so — to detect any Iranian dash to a bomb. If sanctions were the West’s way of pressuring Iran, nuclear build-up was — and could once more be — Iran’s own bargaining chip.
  • Certainly, Tehran would have to have to balance the advantages of this course against the risks that it would provoke Europeans into siding, reluctantly, with Washington, and that it may push the U.S., Israel, or both, into a preventive war. While President Barack Obama always kept the military option on the table, his threshold for the use of force is likely to have been considerably higher than that of his erratic, impulsive successor. It is not clear how Iran’s segmented leadership – divided between elected president and autocratic Supreme Leader – will weigh these factors, but the probability of an armed conflict would rise sharply if Mr. Trump walked away.

Futility of war

  • Not only would a war fail to eradicate Iran’s nuclear know-how, it would have far-reaching regional consequences. Iran’s Revolutionary Guards could unleash Shia militia against U.S. troops in Iraq, and expand support to Afghan insurgents just as Mr. Trump’s surge gets underway. Saudi-Iran tensions would spike, and the risks of a U.S.-Russia confrontation in West Asia would jump dramatically. More broadly, abrogation of the JCPOA would be devastating for Washington’s credibility in future diplomacy. All this would be unwelcome news for India. While Indian imports of Iranian oil have been falling regardless, the Chabahar project, scheduled for completion next year, could face fresh obstacles. Iran-Pakistan relations may also shift unpredictably, and in ways that work against Indian interests.