Listen to this article:

This article is the first in a three-part series. 

The Bombay high court‘s judgment in the Tarun Tejpal case is more than another major decision on rape law. It reflects the tensions of a society that has undergone rapid social, economic and cultural transformation over the past two decades, compelling courts to interpret constitutional principles within multiple and often conflicting social realities.

This series does not seek to revisit the facts of the case or opine upon the correctness of the judgment. Instead, it uses the judgment as a point of departure to examine larger constitutional questions that have received little attention in public discourse.

Long before constitutions articulated rights or criminal statutes defined consent, societies evolved norms governing attraction, courtship, sexuality, power and restraint. Whether these norms were just or oppressive is a separate question. They nevertheless provided a common vocabulary through which women and men interpreted each other’s behaviour.

The law intervened only when these social institutions failed.

The Bombay high court’s judgment in the Tarun Tejpal appeal represents one such occasion for us to reflect on the gulf between law and society.  Much of the public conversation has focused upon one compelling observation made by the court that the “perfect victim” is a myth. That phrase will undoubtedly become the judgment’s most quoted passage.

Yet its real significance lies elsewhere. The judgment is not merely a repudiation of one stereotype about women. It signals India’s entry into an international constitutional movement that has quietly transformed the law of sexual offences over the past three decades.

The transformation has occurred not primarily through legislative revolution but through a more subtle process. Courts across constitutional democracies have gradually changed the questions they ask. For nearly two centuries, judges frequently asked whether a complainant behaved as a genuine victim ought to behave. Modern constitutional jurisprudence asks a fundamentally different question. Did she consent? That shift may appear deceptively simple. In reality, it represents one of the most profound changes in modern criminal........

© The Wire