This article has been written by Ms. Chitrangda Singh, a 2^nd year student of Rajasthan School of Law for Women, Jaipur. 

In India, the law of consent is governed by the Indian Penal Code, 1860. Section 90 of the Code defines “consent” as an “unequivocal voluntary agreement when the person by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the particular act”.

 Section 90 in The Indian Penal Code – 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 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 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 Code further stipulates that a person is said to give his consent when he agrees to do an act which he could lawfully decline to do. Section 87 of the Code lays down that a person is not said to give his consent when it is obtained by force, fraud or coercion.

The Code also provides for certain exceptions where an act done with the consent of a person may amount to an offence. These exceptions have been discussed below.

• Section 88 of the Code lays down that a person is not said to give his consent when he agrees to an act under a misconception of fact and the person doing the act is aware of the fact or is reckless as to whether the person so consenting has the authority to consent.
• This section is based on the maxim ignorantiafacitexcusari. The maxim means that a person is not liable for an act done with the consent of another person. 

It is generally understood that in order for an individual to give consent, they must be of sound mind and body and must be acting of their own free will. In order for consent to be valid, it must be given without coercion, duress, or force. In the eyes of the law, an individual who is under the influence of drugs or alcohol may not be able to give consent.

If an individual is deemed to not have the capacity to give consent, this does not mean that they cannot be held liable for their actions. An individual who commits a crime while under the influence of drugs or alcohol can still be prosecuted. Similarly, an individual who engages in sexual activity with a minor may be charged with statutory rape, even if the minor consented to the act.

Consent in case of Sexual matters

‘Consent’ means an agreement between two or more personsto do or not to do a particular thing. It is an act of reason, accompanied with deliberation, and involves a mental process of deciding to do something or not to do something. 

In order to constitute consent, it is essential that the person giving consent must be competent to give consent. A person is said to be competent to give consent if he/she is of a sound mind and is not under any coercion, undue influence or fraud. Under the Indian Penal Code, 1860, the age of consent for sexual intercourse is 18 years. This means that a person who is below the age of 18 cannot give consent for sexual intercourse. If a person has sexual intercourse with a person below the age of 18, it is considered to be rape, even if the person below the age of 18 has consented to it.

Case Laws 

1. In the case of KainiRajanv. State of Kerala, the Kerala High Court held that the consent of a girl below the age of 16 years is irrelevant and void in law and cannot be a ground for acquitting the accused of the offence of rape.
2. In the case of State of U.P. v. Ashok Kumar, the accused had sexual intercourse with a girl below the age of 18 years with her consent. The accused was held guilty of the offence of rape.
3. In the case of State of Karnataka v. Krishnappa, the accused had sexual intercourse with a girl below the age of 18 years with her consent. The accused was held guilty of the offence of rape.
4. In the case of State of Maharashtra v. Chandrabhan, the accused had sexual intercourse with a girl below the age of 18 years with her consent. The accused was held guilty of the offence of rape.

Defence of Consent 

Consent means “to agree upon the same thing in the same sense.” Sections 87 to section 89 of the Indian Penal Code lays down that if certain acts are committed with the victim’s consent, they’re going to not be considered an offence, and therefore the offender will not be held liable for the same. 

• Section 87– An adult person may consent to any harm against himself (which isn’t thoughgrievous hurt or murder). 
• Section 88 – Similarly any act leading to harm may be done againsta consenting person, in absence of an intention to cause death, if the act is completed for the benefitof the person consenting and in straightness.  
• Section 89 – And just in case the person against whomthe act sought to done which could result in an incidental harm, is incapable of giving consentby reason of unsoundness of mind or infancy, the consent could also be given by the guardian of suchperson or the other person having the lawful charge of the person, provided the act was donein straightness and for the benefit of such insane or minor. 

Conclusion 

Consent means “to agree upon the same thing in the same sense.” And it is said to be free when it is obtained from free consent , without fraud and misconception of facts. In IPC a person is liberated from any liability when hehimself  causes or takes the risk of injury with or without the consent of the sufferer as he acted in good faith and for the benefit of the person harmed.

Consent is an important concept in the Indian Penal Code (IPC). It is defined in Section 90 of the IPC as ‘an act of reason, accompanied with deliberation, the mind weighing, as it were, the good and evil on both sides’. The section further states that ‘the term ‘consent’, according to its grammatical meaning, implies a voluntary act, or the exercise of a free will’. The main purpose of consent in the IPC is to exempt a person from liability for a criminal act. The code allows for a person to be held criminally liable if he/she has committed a criminal act without the consent of the other person. For example, Section 375 of the IPC states that ‘sexual intercourse by a man with a woman without her consent amounts to rape’. Similarly, Section 377 of the IPC states that ‘voluntarily having carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine’. In order for consent to be valid, it must be given freely and voluntarily by the other person. The consent must also be informed, meaning that the person giving the consent must have knowledge of the nature of the act or transaction which he or she is consenting to. The consent must also be given with full awareness of the consequences of the act or transaction. The IPC also contains several provisions which deal with the issue of consent in specific contexts. For example, Section 91 of the IPC states that ‘consent obtained by putting a person in fear of death or of hurt shall be void’. Similarly, Section 92 of the IPC states that ‘consent obtained by deceit shall be void’.

In conclusion, consent is an important concept in the IPC and is essential for determining criminal liability. It is important to understand the concept of consent in order to ensure that criminal acts are not committed without the other person’s consent. But in case of serious bodily injuries, criminal law does not recognise consent as a defence. For example, a player consented for a certain degree of injuries in a cricket match but if s/he received more than that in the normal conduct of the game, then it is unlawful.

Reference

1. https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0CDoQw7AJahcKEwiAjO6727r7AhUAAAAAHQAAAAAQAw&url=http%3A%2F%2Flaw.uok.edu.in%2FFiles%2F5ce6c765-c013-446c-b6ac-b9de496f8751%2FCustom%2FDEFENCE%2520OF%2520CONSENT.pdf&psig=AOvVaw3ZB8EyKkDyJIt8q9r4CkEU&ust=1668963434531015
2. https://indiankanoon.org/doc/92369002/#:~:text=State%20of%20Kerala%20(2008)%2014,sole%20testimony%20of%20the%20prosecutrix
3. https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0CDMQw7AJahcKEwiw0ayN3Lr7AhUAAAAAHQAAAAAQAw&url=https%3A%2F%2Findiankanoon.org%2Fdoc%2F287914%2F&psig=AOvVaw1nRMjiA4aGhLHRn57ewyjV&ust=1668963605929531

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