CONSENT- GENERAL EXCEPTION UNDER IPC
MEANING OF CONSENT
According to common usage, consent is an action taken voluntarily and on purpose. It entails the deliberate application of intelligence grounded in awareness of the importance and moral implications of the act. It consists of three things: the ability to use them freely, both physically and mentally.
But nowhere in IPC is the word “consent” defined. However, Section 90 of the IPC describes what does not constitute consent. It uses a derogatory phrase to describe consent. It states that a consent given by a person who is incapable of understanding the information because they are under the influence of alcohol, are mentally unsound, are afraid of being hurt, are misinformed about the information, or are a child under the age of 12 (unless the opposite is evident from the context), who is incapable to understand the nature and consequences of the consented act, is no consent.
CONSENT AS A DEFENCE UNDER IPC
Despite the fact that Section 90 of the IPC does not define “consent,” it does clarify what it is not. It controls how Sections 87, 88, and 89 of the I.P.C. operate. Four situations exist where a person’s permission is invalid.
First: A consenting party who is afraid of being hurt- Consent gained through violence and threats would not be a defence under criminal law. For instance, Z once cut A with a knife to get him to name X, Z’s son, as the beneficiary on his property paper. In this case, consent was provided out of fear of harm.
Second: Person giving consent while misinformed about the facts – If consent is given while misinformed about the facts, it is worthless in the eyes of the law. For instance, a woman consented to having sex with a doctor while she was under the impression that he was examining her medically. Because he led her to believe he was performing a medical examination on her, the doctor would be found guilty.
Third: Consent granted by mentally unstable or inebriated individuals who are unable to comprehend the nature and implications of their actions. For instance, A, who was quite inebriated, signed his property document in the proprietor of the booze store’s favour only to receive one more liquor bottle. In the eyes of the law, his consent has no value.
Fourth: Child consent – The final paragraph of section 90 states that consent granted by a child under the age of 12 has no legal significance. In this scenario, the child’s guardians or other person in charge will provide their assent.
SCOPE OF SECTION 87 OF IPC
Section 87 of the Indian Penal Code, 1860 (IPC) offers defence for some sports, including fencing, boxing, football, and others. Consent given for any harm other than death or grave hurt. According to this clause, if an act is done with the permission of a person who is at least 18 years old, it is not considered criminal. This excludes acts that are intended to cause death or great bodily harm and that the perpetrator is unaware is likely to do so. The consent may be granted explicitly or implicitly in any way.
This section is based on the adage “volenti non-fit injuria,” which states that no harm can come to someone who gives their consent. In other words, a person accepts to suffer the injury if he freely consents to an action that could injure him. He is not permitted to hold the other party accountable.
Football is being played by A and B. A is struck in the face by a ball that B kicks. A was hurt as a result. Here, it was conveyed that it was okay to get hurt while playing a game. A may offer a defence.
SCOPE OF SECTION 88 OF IPC
Act carried out in good faith with another person’s consent and in accordance with Section 88 of the IPC
An act of injury committed in good intention and with permission for that person’s benefit will not be regarded as criminal. Either express or implied permission is possible. The consent must, however, be obtained legally and from a person who is able to give legally binding consent.
According to Indian Penal Code Section 88, the wrongdoer is protected even if their actions result in great bodily harm but not death. When a patient voluntarily agrees to assume the risk of an operation, the surgeon cannot be held responsible if the operation is deadly.
In Illustration A, the patient’s nasal deformity was corrected through plastic surgery on the patient. The operation ended in the patient’s death. In this case, A won’t be held responsible for the patient’s passing unless he acted with extreme carelessness.
SCOPE OF SECTION 89 OF IPC
Act is carried out with a guardian’s approval for the benefit of a child or a person who lacks mental capacity – Section 89, IPC
The authority to consent to the harming of a child under the age of twelve or a person who lacks mental capacity is granted under this provision. According to Section 89 of the Indian Penal Code, any action taken in good faith for the benefit of a child under the age of 12 or who is mentally incompetent with the approval of the guardian or another person legally in charge of that person is not illegal.
Please be aware, nevertheless, that this exclusion does not apply to willful homicide or the attempt to cause death.
A took him to a surgeon in good faith to get the stone in his stomach removed for the benefit of his child. He was well aware that the procedure would probably result in the death of his child. A gave his permission to have his child treated, but he had no intention of killing himself. Here, neither A nor the surgeon will be held accountable if the procedure results in death because their only goal was to treat the child.
Dasrath Paswan v. State (1957)
The accused in this instance has three years in a row of failing a test. He made the decision to take his life in order to depress his ongoing failures. He talked about his choice with his bride, a literate 19-year-old woman. His wife advised him to commit suicide first, then to murder her. So, before he could kill himself, the accused killed his wife first and was then apprehended. The wife was found to have withheld her assent out of fear of harm or a false belief in the truth. As a result, the defendant would not be guilty of murder.
Baboolun Hijrah v. Emp (1866)
In this instance, a man consented to being emasculated. It was neither carried out by a skilful hand nor in the least dangerous way and resulted in the death from the injury. Before the Court the accused pleaded that he did know that the practice of emasculation was forbidden by law and also he acted under the free consent of the deceased. The court held the accused not guilty.
Poonai Fattemah v. Emp. (1869)
In this instance, the accused, a snake charmer, convinced the victim to consent to being bitten by a dangerous snake by convincing him that he could shield him from the injury. In this case, the deceased’s agreement was given based on the false belief that the accused could treat snake bites. As a result, the Court determined that the accused was accountable and did not have the right to protection based on the deceased’s consent.
We can see from the discussion above why a doer is immune from criminal prosecution when he causes or assumes the risk of injury with or without the victim’s permission as long as he acted in good faith and for the victim’s advantage.
However, criminal law does not recognise consent as a defence in cases of substantial physical harm. For instance, a football player may have agreed to a particular level of injuries during a game, but it is illegal if the player sustains more injuries than that throughout the course of play.
Author: Anshika Jain,
Amity University, Madhya Pradesh, B.A. LL.B (Hons.), 3rd year