In a general context, consent refers to an individual’s willingness to do a certain thing or to do a certain thing or to be included in a certain activity. 

It is important to understand that there is a significant difference between agreement and consent, as consent acknowledges the factors that can pressure a person into an agreement. It acknowledges the intangible factors of influence like force, power, or manipulation. 

Consent demands that an individual's willingness be genuine and independent of factors like fear, threat, or rewards. 

However, in a legal or constitutional context, there is really no official definition of consent means with reference to the Indian penal code.

Section 90 of the IPC lays down what does NOT account for an individual’s consent. 

Section 90 states that - 

"Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code if a person gives the consent 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 Consent of insane person.—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 Consent of child.—unless the contrary appears from the context if the consent is given by a person who is under twelve years of age."

THE COMPLEX NATURE OF ‘CONSENT’ AS DEFENSE- 

Consent as a concept is extremely significant for the legal procedure and is extremely complex due to its intangibility nature. Consent, unlike permission or agreement, is not black and white. Whether or not an activity was consensual by an individual cannot be determined simply by the existential evidence as the mental pressure put on a person or the exam degree of violation is difficult to measure. 

This is why the Indian constitution lays down certain guidelines as to what consent is NOT. There are 4 conditions under which a person’s agreement will not be counted as consent-

1. An individual giving consent under the fear of injury-

According to the criminal laws of the country, an individual giving consent under the fear of any physical or mental violence will not be considered as consent. 

Meaning, if consent is given in order to avoid any physical (or mental) violence or injury will not be considered as consent. In such a case, an individual's indulgence or agreement will be considered forceful. 

E.g. A woman agreeing to indulge in any sexual activity with a man in fear of/ to avoid any physical or mental violence or injury will not be considered as consensual sex. It will still account for rape and is punishable as per the severity of the violation. 

2. Consent is given as a result of a misconception of facts- 

Any consent given under a misconception of facts misunderstood terms, or manipulated facts will hold no value in front of the law. 

Meaning, for any agreement or willingness to be considered consensual, the law requires that the individual giving consent must be fully aware of exactly what they are consenting to.

E.g., A property agreement signed by an illiterate individual under incorrect or manipulated information given by someone will not stand valid in the court of law. If the person does not know exactly what they are signing, the papers or the signature will not hold any value. 

3. Consent granted by an individual with mental instability of any kind- 

Any consent granted by an individual with an unsound mind will not be accounted for as consent. Similarly, consent given by an individual while they are intoxicated will also not be considered as consent. Meaning, any person who is not in a state (or is incapable) to comprehend the cause and consequences of the consent will not stand valid in the court of law.

E.g., Sexual consent given by an individual in an extremely intoxicated state, where they are not in a position to think or decide rationally, will not be considered as consent. 

4. Consent is given by a minor- 

The last paragraph of section 90 states that any consent given by a child under the age of 12 will not be considered as consent. The constitution does not consider a child under the age of 12 eligible to grant consent. They are incapable of comprehending the consequences of their consent and can be easily manipulated or influenced into indulging in something that is not in their best interest. 

Any consent on behalf of a child under the age of 12 must be granted by their parents/ guardians or whoever is in charge of the child. 

So, an accused can plead consent as a defence in the court of law under sections 87, 88,89 and 90 if-

1. The consent is NOT granted under no threat of any danger.

2. The consent is NOT granted under any misconceptions.

3. The individual consenting is NOT under the age of 12.

4. The individual is NOT of an unsound mind and is NOT intoxicated at the time of giving consent. 

THE LANDMARK JUDGEMENT- Triple Talaq

On August 22, 2017, the supreme court of India declared that the Islamic practice of triple talaq is no longer constitutional. The practise of Triple Talaq allowed men to end a marriage without the notice or consent of the woman (wife). Under this law, the court extended the rights of a woman in marriage to the woman belonging to the Islamic communities of India as well. This case stands as a landmark, not only for gender equality but also for the cases related to consent. 

Consent remains one of the most interesting and complex areas of the legal system. The understanding of consent prevents an individual from being taken advantage of under any weaknesses by means of violence or manipulative influences. The court acknowledging consent in a case can sometimes make the cases extremely complex and devoid of existential shreds of evidence, but it is vital for justice to be implemented in a meaningful way. 

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Author: Gouri Menon