Bharatiya Nyaya Sanhita 2023: Section 28- Protection from coercion and exploitation

Section 28 of the Bharatiya Nyaya Sanhita (BNS) 2023 addresses the validity of consent in criminal law, specifying circumstances under which consent is considered invalid. This provision ensures that consent is genuine, informed, and voluntary, thereby protecting individuals from exploitation and coercion.

Text of Section 28:

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.

Analysis of Subsections:

1. Clause (a): Consent Given Under Fear or MisconceptionThis clause invalidates consent obtained through coercion or misunderstanding. If an individual consents due to fear of harm or a false belief, and the person performing the act is aware or should reasonably be aware of this, the consent is not valid. For example, if a person agrees to a contract under threat or due to misinformation, such consent is not legally recognized.
2. Clause (b): Consent Given by Individuals Unable to Understand Due to Mental Illness or IntoxicationConsent is invalid if given by someone who, due to mental illness or intoxication, cannot comprehend the nature and consequences of their actions. This provision safeguards individuals who are mentally incapacitated or under the influence of substances, ensuring they are not exploited or coerced into consenting to actions they do not fully understand.
3. Clause (c): Consent Given by Persons Under Twelve Years of AgeGenerally, consent provided by individuals under twelve years of age is considered invalid, unless specified otherwise. This clause protects minors who may not have the maturity or understanding to make informed decisions, thereby preventing their exploitation.

Purpose and Implications:

The primary objective of Section 28 is to ensure that consent in legal contexts is both informed and voluntary. By outlining specific scenarios where consent is invalid, the law aims to protect vulnerable individuals from exploitation and abuse. This provision is particularly relevant in cases involving sexual offenses, contracts, and other legal agreements where consent is a critical element.

Examples:

• Example 1: If an individual agrees to a medical procedure under the threat of harm, their consent is invalid as it was given under fear.
• Example 2: A person who is intoxicated and unable to understand the consequences of their actions cannot provide valid consent for a contract.
• Example 3: A child under twelve years of age cannot legally consent to a marriage, even if both parties agree.

Section 28 of the Bharatiya Nyaya Sanhita, 2023, plays a crucial role in upholding the integrity of consent within the Indian legal framework. By delineating clear boundaries for valid consent, it ensures that individuals are protected from undue influence, coercion, and exploitation, thereby promoting justice and fairness in legal proceedings.