BNS Section 28: Consent Known to Be Given Under Fear or Misconception
Section 28 of BNS is part of CHAPTER 3 GENERAL EXCEPTIONS in Bharatiya Nyaya Sanhita 2023 Act. It addresses critical aspects of consent, delineating circumstances under which consent is rendered invalid. This section deals with when the consent would be invalid. In this regard, the provision further considers that if such consent is collected under compulsion, ignorance, or from a person who cannot appreciate the full implications of his or her assent, then it cannot be considered valid. In particular, the section states that such consent is invalid in the following situations:
Section 28 draws the point on free and informed consent, which is being exercised so that men and women do not become the victim of unfair coercion when they make legal agreements about which they may have no genuine understanding or desires. In fact, the law as an institution will try to save the rights and liberties of the weakest members of the society in order to set up the process of justice and fairness on the question of consent.
Definition of BNS 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
Explanation and Illustration of Section 28 (Bharatiya Nyaya Sanhita, 2023)
Section 28 of the Bharatiya Nyaya Sanhita (BNS) 2024 critically examines the validity of consent, ensuring that agreements are made freely and with a full understanding of their implications. This provision establishes that certain forms of consent are inherently flawed and cannot be considered legitimate under the law.
Key Provisions:
Illustration To elucidate these principles, consider the following scenario:
Scenario: B, a minor, is coerced by an adult into signing a contract for a mobile phone under the threat of harm. The adult is aware that B is signing under fear and does not fully understand the consequences of the contract. In this case, B’s consent is invalidated because it was given under duress, demonstrating that the adult's knowledge of the situation further complicates the legitimacy of the consent.
This section highlights the importance of ensuring that consent is informed, voluntary, and given by individuals capable of understanding their decisions, thereby protecting vulnerable populations from exploitation and ensuring fairness in legal agreements.
Key Points of BNS 28
Invalid Consent Due to Fear or Misconception:
Inability to Understand Due to Mental Illness or Intoxication:
Consent by Minors:
Differences Between Section 28 of BNS 2023 and its Equivalent IPC Section
This section outlines the key differences between Section 28 of the Bharatiya Nyaya Sanhita (BNS) 2024 and its equivalent Indian Penal Code (IPC section 90), focusing on their distinct approaches.
| BNS Sections/ Subsections | Subject | IPC Sections | Summary of comparison |
|---|---|---|---|
| 28 | Consent known to be given under fear or misconception. | 90 | No change. |
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FAQs about Section 28 of the Bharatiya Nyaya Sanhita (BNS)
What offence is defined under BNS Section 28?
Section 28 of the BNS addresses situations where consent is given under fear or misconception, highlighting that such consent may not be valid in legal terms.
Which chapter does Section 28 belong to in the Bharatiya Nyaya Sanhita 2023?
Section 28 is part of CHAPTER III, titled GENERAL EXCEPTIONS, in the Bharatiya Nyaya Sanhita 2023 Act.
How does Section 28 impact the validity of consent?
This section clarifies that if consent is obtained through coercion or misunderstanding, it may not hold legal weight, protecting individuals from being bound by agreements made under duress.
What factors are considered to determine if consent was given under fear or misconception under Section 28?
Factors include the circumstances surrounding the consent, the presence of threats or pressure, and whether the individual had a reasonable understanding of the situation.
Are there other relevant provisions related to consent in Chapter III of the BNS?
Yes, Chapter III may contain additional provisions that address the nuances of consent, including scenarios where it may be deemed invalid or coerced, further elucidating the legal implications of such cases.
What does Section 28 of the Bharatiya Nyaya Sanhita (BNS) address?
Section 28 of the BNS addresses consent given under fear or misconception. It specifies that consent obtained through fear, duress, or a false belief (misconception) is not valid and cannot be used as a defence for actions that would otherwise be criminal.
How does Section 28 protect individuals from coerced consent?
Section 28 protects individuals by invalidating any consent given under fear or misconception, ensuring that consent must be given voluntarily and with accurate knowledge.
