Introduction
The Bharatiya Nyaya Sanhita, 2023 (BNS), which supersedes the Indian Penal Code, 1860, maintains several core criminal law principles, such as general exceptions that exempt persons from criminal responsibility under certain situations. One such important exception is “consent.” In a properly given form, consent can serve as a shield against criminal culpability.
What is Consent?
Consent means a person agrees to another person’s act after knowing the act’s consequences. The concept of consent is based on the legal maxim volenti non fit injuria, which means that harm caused with the consent cannot be considered an injury and does not amount to an offence. Consent given by a person may either be express or implied. Implied Consent can be inferred from one’s conduct or the nature of the operation. Consent plays a vital role in determining a person’s criminal liability. In the Bharatiya Nyaya Sanhita, 2023 (BNS) context, consent is crucial, particularly concerning various criminal offences. Consent refers to the voluntary agreement of an individual to engage in a particular act or to permit something to occur. However, the BNS outlines specific provisions where consent may not be considered as a defence or may be vitiated (rendered invalid).
Types of Consent
Consent can be given in different forms based on where it is provided. The forms of consent are outlined as follows:
Express Consent: This consent form is clearly expressed verbally or in writing. It comprises a straightforward and explicit consent to engage in a specific activity or to enable something to occur.
Implied Consent: Implied consent is assumed from someone’s behaviour or activity instead of express agreement. It is presumed based on the situation and the reasonable expectations of the parties. For instance, a patient’s outstretched arm enables a physician to take their blood pressure, which implies consent.
Informed Consent: Informed consent is provided when all information about a specific situation or activity, including its risks, advantages, alternatives, and outcomes, is provided. Informed consent is frequently demanded in medical procedures, research experiments, and legal contracts.
Consent by Coercion: This form of consent is where one consents to something due to coercion or duress, like threats, intimidation, or manipulation. Consent gained through coercion is regarded as not genuine or valid in most jurisdictions.
Consent by Deception (Fraud): Deception or fraud to gain consent is not valid since the person consenting does not know the real situation. For instance, it will be considered invalid when an individual pretends to be someone else or falsely expresses their intentions to gain consent for a specific activity.
Consent by Incapacitation: Consent obtained from an individual who is not able to make sound decisions because of intoxication, mental incapacity, or similar factors might not be valid under the law. The person concerned should have the ability to know about the nature and effects of their actions to give valid consent.
Revocable Consent: Consent that may be withdrawn or revoked at any time is referred to as revocable consent. Even when consent was initially given, the person can change their mind and withdraw their consent at any time during the activity or interaction.
Knowledge of the various types of consent is valuable in many legal, medical, and interpersonal situations to ensure people’s rights and autonomy are respected and safeguarded.
Consent as an Exception under BNS 2023
Section 25 of BNS: Act by Consent Not Intending Death
Acts not intending to cause death or grievous hurt, with the consent of the person affected, are not offences.
For example, mutual consent in a duel exempts a duelist who causes unintended harm.
Section 26 of BNS: Act for Person’s Benefit without Intending Death
Acts done in good faith for the benefit of an individual, though they might harm, are not crimes.
A surgeon who performs a dangerous operation with the consent of the patient for the patient’s benefit will come under this exception and will not be punished, even though the patient may die.
Section 27 of BNS: Acts for Child or Person of Unsound Mind
Acts performed in good faith for the welfare of a child or a person of unsound mind, with the guardian’s permission, are not offences, except under certain conditions stipulated in the provision.
Section 28 of BNS: Consent under Fear or Misconception
Consent received under fear, misconception, unsoundness of mind, intoxication, or by a person under the age of twelve years is not valid consent under this Sanhita.
Section 29 of BNS: Offences Excluding Independent Harm
Some actions are offences irrespective of consent, like inflicting a miscarriage without permission for the benefit of a woman, except for saving her life.
Section 30 of BNS: Act in Good Faith for Another Person without Consent
No offence is committed if something is done in good faith to benefit a person without their consent, subject to certain conditions, such as saving another person’s life or averting serious harm.
Section 31 of BNS: Communication Made in Good Faith
Communications made in good faith for the benefit of an individual are not offences, though they may cause harm. For example, a surgeon genuinely telling a patient about his critical condition, which shocks the patient. In this case, the surgeon is exempted under this section.
Section 32 of BNS: Acts Compelled by Threats
Offences perpetrated with the threat of immediate death, other than murder and specific state offences, will be excepted. Nevertheless, if the individual voluntarily puts themselves into that condition, the exception will not occur.
Section 33 of BNS: Act Causing Slight Harm
No offence has been committed if an act causes minimal hurt that a person with ordinary sense and temper would not resent.
Case Study
Dasrath Paswan vs State AIR 1958 Pat 190
This case involved the accused who had not passed his examination for three consecutive years. Upon being frustrated by these failures, he made up his mind to commit suicide. His wife requested that he kill her first and then commit suicide. However, after murdering his wife, he was apprehended before he could commit suicide himself. But he was not liable as his wife had not consented under pressure or threat.
Poonai Fattemah v. Emp. (1880) ILR 5 Cal 351
As a snake charmer, the offender persuaded the victim to be bitten by a snake in the case. He had convinced him and assured him that the accusers could ward off harm to him. The deceased had agreed to the case because he thought the accused could cure snake bites. As a result, the accused was found guilty because he lacked the legal right to defend himself based on the deceased’s consent.
Conclusion
Consent is a crucial and multi-faceted concept as a general exception in the Bharatiya Nyaya Sanhita, 2023. It is a constitutional protection ensuring personal freedom while balancing criminal responsibility. The BNS carefully delimits the parameters within which consent may exempt a person from criminal liability, highlighting the consenting individual’s voluntariness, informed awareness, and legal capacity.
But the Sanhita also imposes definite restrictions, precluding consent as a defence if it has been brought about through coercion, fraud, fear, or from incapables, and where the nature of the act in itself is inherently criminal irrespective of consent (such as in causing miscarriage, grievous hurt, or death where no medical reason exists).
The numerous provisions under Sections 25 to 33 identify how consent can change the legal nature of an act, as long as it complies with the requirements of good faith, legal intent, and real agreement. BNS 2023 acknowledges the nuance of human interactions. It provides that the consent doctrine shall not be abused, but only utilised to ensure justice and protection for all concerned.
