BNS Section 28 - Consent Known To Be Given Under Fear Or Misconception

India's newly enacted criminal code, the Bharatiya Nyaya Sanhita (BNS), contains a provision in Section 28 that outlines what is not consent under the BNS. The role of consent is significant because consent may serve as the essential element in classifying an act that may otherwise be referred to as an offense. BNS Section 28 provides several circumstances where consent, although apparently given, is to be disregarded by law.

It is in this section that we see a lack of free and informed choice by consent pursuants due to a variety of circumstances including fear, incorrect belief, incapacity, intoxication and/or young age of the consent pursuants, and it is very important to understand how this section is applied as it affects the survival of defenses claiming consent for a variety of offenses.

Notably, BNS Section 28 is the clear successor and equivalent of Section 90 of the Indian Penal Code (IPC), and maintains a fundamental and ubiquitous principle that ensures the replacement of a criminal code, thereby shaping the boundaries of valid consent in India's criminal jurisprudence in a new and developing legislative framework.

In this article, you will get to know about:

• Simplified Explanation of BNS Section 28.
• Key Details.
• Practical Examples Illustrating BNS Section 28.

Legal Provision

Section 28 of BNS ‘Consent known to be given under fear or misconception’ states:

A consent is not such a consent as is intended by any section of this Sanhita,

1. 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
2. if the consent is given by a person who, from mental illness, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
3. unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Simplified Explanation

Essentially, BNS Section 28 establishes that consent can only be recognized as legally valid and possibly protect a person from criminal responsibility or accountability if it is given voluntarily and a clear understanding of what is going to be consented to is made. That section identifies three dominant circumstances where consent can be determined to be invalid:

Consent Given Under Fear or Misconception

Consent given under duress or under a false belief of the facts is not consent at all if the receiver of the consent has knowledge or real reason to believe the consent was given under duress or a false belief of fact. For instance, if a person agrees to turn over their possessions because they are fearful the other will commit physical violence against them, or they agree to a medical procedure because they were mislead by incorrect information, that consent is not legal consent. In those examples, it does not matter if the fear or misunderstanding was genuine, but whether the other party had knowledge or some reason to believe there was fear or misunderstanding present.

Consent Given by Someone Unable to Understand

In cases where the individual giving the consent is suffering from a mental illness or is incapacitated, such that they cannot understand the nature and consequences of their actions, this would not constitute valid consent. The purpose of taking such a person’s incapacity into consideration is to protect individuals whose thinking and cognitive abilities are severely impaired by mental illness or intoxication and who, therefore, cannot provide voluntary consent. The essence of this is to focus on the person’s ability to understand the meaning of the consent and the possible consequences resulting from the consent.

Consent Given by a Child Under Twelve (Unless Context Suggests Otherwise)

In general, consent by a child who is less than twelve years old is not deemed legally valid consent, for the very reason that children under twelve do not have the capacity or understanding necessary to give consent, especially in situations where there is a likelihood of harm. However, the section includes the words "unless the contrary appears from the context." This means that there is some force behind the proposition that a child under the age of twelve may, in certain situations, demonstrate sufficient understanding to grant valid consent to something seemingly innocuous. Courts interpret these exceptions restrictively.

Key Details

Practical Examples Illustrating BNS Section 28

A few examples are:

Consent Under Fear

A bully 'X' tells a younger student 'Y' that if 'Y' does not give 'X' his lunch money, 'X' will physically beat him up after school. 'Y', fearing injury, gives 'X' the money. 'Y's "consent" to give the money would not be valid under BNS Section 28 because it was given under fear of injury, and furthermore, 'X', the person doing the act (taking the money), knows that 'Y' is acting out of fear.

Consent Under Misconception of Fact

A conman “P” lies to an old age and trusting person “Q” and tells him he needs 'Q' to sign a receipt for a small donation to a charity. But in actual fact, it is a transfer deed for 'Q's property. 'Q' signs the document based on 'P's misrepresentation. 'Q's so-called "consent" to sign the deed is not valid pursuant to BNS Section 28, because it was given under a misapprehension of fact, which P as the person doing the act (obtaining the signature), intentionally produced.

Key Improvements And Changes: IPC Section 90 To BNS Section 28

There is a minor but significant change in terminology between IPC Section 90 and BNS Section 28.

• IPC Section 90 uses the term "unsoundness of mind".
• BNS Section 28 replaces this with the term "mental illness".

While the underlying rationale is unchanged that consent is invalid if a person is incapable of understanding through no fault of their own, as they are suffering from a mental illness, the change in terminology updates our understanding of mental health problems more in keeping with a modern context that is medically accurate. We use “mental illness” in legal and medical contexts, including in the Mental Healthcare Act, 2017 in India.

The essentials of a switch in the wording of the BNS Section 28 from IPC Section 90 is simply that it updates the language used to reflect the condition, to show that a mental illness can invalidate consent if a person is not able to give consent through no fault of their own. In any event, the other circumstances use invalidate consent (fear of injury, erroneous belief of fact, and age under twelve) remain substantively unchanged.

Conclusion

BNS Section 28 builds on the basis of IPC Section 90 in providing a critical statement of the meaning of consent in the Indian criminal justice system. In prescribing the situations in which consent is not recognized in law, namely if the consent was procured by fear; subject to a misconception of fact that is known to the accused; in a state of incapacity arising from mental illness or intoxication; or in the case of consent given by a child under twelve years of age (with a limited contextual exception), it emphasizes the importance of free, informed and voluntary consent.

The substitution of the phrase "unsoundness of mind" in the BNS with the more relatable term "mentally ill" is a movement toward the legal terminology employing prevailing terms to ensure legal language provides clarity to the contemporary understanding of mental health. In the end, section 28 is an important protection for vulnerable persons against exploitation who otherwise would have had the right to refuse consent. Further, Section 28 establishes the limits under which consent, as outlined in the BNS, can be misused by denying the defense in circumstances where there is no genuine and informed consent.

FAQs

A few FAQs are:

Q1. Why was IPC Section 90 revised and replaced with BNS Section 28?

IPC Section 90 wasn't drastically revised. The enactment of the Bharatiya Nyaya Sanhita (BNS) is a comprehensive overhaul of India's criminal laws, replacing the IPC. As part of this process, existing provisions have been re-codified and renumbered. The key change in this specific section is the use of the term "mental illness" instead of "unsoundness of mind," reflecting modern terminology.

Q2. What are the main differences between IPC Section 90 and BNS Section 28?

The main difference is the replacement of the term "unsoundness of mind" in IPC Section 90 with "mental illness" in BNS Section 28. The other grounds for invalidating consent (fear of injury, misconception of fact, and age under twelve with contextual exception) remain the same.

Q3. Is BNS Section 28 a bailable or non-bailable offense?

BNS Section 28 itself does not define an offense. It provides the definition of what does not constitute valid consent, which is relevant to determining whether an offense has been committed under other sections of the BNS where consent might be a defense. The bailability of the actual offense committed would depend on its nature and the provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Q4. What is the punishment for an offense under BNS Section 28?

BNS Section 28 does not prescribe a punishment. It is a definitional section. If an act is committed without valid consent (as defined in Section 28) and constitutes an offense under other sections of the BNS (e.g., assault, battery, rape), the punishment would be as prescribed for that specific offense.

Q5. What is the fine imposed under BNS Section 28?

Similar to punishment, BNS Section 28 does not impose a fine. Any fine would be associated with the specific offense committed under other sections of the BNS if the act was done without valid consent as defined in Section 28.

Q6. Is the offense under BNS Section 28 cognizable or non-cognizable?

BNS Section 28 does not define an offense. The cognizability (whether the police can arrest without a warrant) of the underlying offense committed without valid consent (as defined by Section 28) would depend on the nature of that specific offense as classified under the BNS and the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Q6. What is the BNS Section 28 equivalent of IPC Section 90?

BNS Section 28 is the direct equivalent of IPC Section 90. They both define what does not constitute valid consent under the law, with the minor terminological update from "unsoundness of mind" to "mental illness" in the BNS.