A consent is not such a consent as is intended by any section of this Sanhita,—.
(a) if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or.
(b) if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or.
(c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Simplified Explanation
Section 28 of the Bharatiya Nyaya Sanhita (BNS), titled “Consent Known to be Given Under Fear or Misconception,” addresses situations where a person’s consent is obtained through fear or a misunderstanding of facts. This section establishes that consent is not legally valid if it is given under duress (fear) or due to a misconception, and any actions taken based on such consent may not be protected under the law.
Key Points of Section 28
- Invalidity of Consent Given Under Duress or Misconception:
- This section states that consent is invalid if it is obtained under circumstances where the individual is coerced (through fear) or is misled by a misunderstanding or misrepresentation of facts. For consent to be valid, it must be given freely, without any undue influence or deception.
- Impact on Legal Immunity:
- If a person acts based on consent they know was given under fear or misconception, they cannot claim immunity from criminal liability. This section prevents individuals from using such invalid consent as a defense in cases where they knowingly exploited another person’s vulnerability.
- Fear as a Coercive Factor:
- Consent obtained under fear means that the person agreed to the act due to a threat or coercive influence. For example, if someone consents to an act because they fear physical harm or other adverse consequences, this consent is not considered freely given.
- Misconception or Misunderstanding of Facts:
- Consent based on a misconception occurs when a person agrees to an act due to false information or misunderstanding about what is involved. For example, if someone consents to a procedure believing it to be harmless due to misleading information, their consent is invalid.
- Requirement of Knowledge:
- This section applies only when the person performing the act is aware that the consent was given under fear or misconception. If they knowingly act on such invalid consent, they may be held liable for any resulting harm, as they acted despite knowing that the consent was not genuine.
- Examples of Application:
- If a person obtains someone’s consent for a contract by threatening them or providing false information about the terms, any actions based on that consent could be legally challenged. Similarly, if a medical procedure is conducted based on consent obtained by misleading the patient, the person conducting the procedure could be held liable.
- Judicial Assessment of Consent Validity:
- Courts assess whether consent was given freely and with full understanding. If it is proven that fear or misconception influenced the decision, the court may consider the consent invalid and hold the actor accountable for any harm caused.
Purpose of Section 28
The purpose of Section 28 is to ensure that consent is meaningful, voluntary, and informed. By declaring consent obtained through fear or misconception as invalid, this section safeguards individuals from exploitation and coercion. It reinforces that legal immunity cannot be claimed when someone knowingly takes advantage of another person’s compromised state of mind. Section 28 promotes fairness and justice by protecting the autonomy of individuals and ensuring that consent is given freely and without manipulation, maintaining the integrity of actions based on genuine agreement.
