What Is BNS Section 28?

Bharatiya Nyaya Sanhita, 2023 - Section 28: Consent known to be given under fear or misconception.

A consent is not considered valid under any section of this Sanhita if:

• The consent is given by a person under fear of injury or under a misconception of fact, and if the person performing the act knows or has reason to believe that the consent was given due to such fear or misconception.
• The consent is given by a person who, due to unsoundness of mind or intoxication, is unable to understand the nature and consequences of what they are consenting to.
• Unless stated otherwise in the context, the consent is given by a person who is under twelve years of age.

Brief Detail

Section 28 of the BNS Sanhita addresses the validity of consent. It specifies that consent is invalid if:

• It is given under fear or misconception, provided the act's performer is aware of this condition.
• It is given by someone who is mentally unsound or intoxicated, rendering them incapable of understanding the implications of their consent.
• It is given by a person under twelve years old, unless the context indicates otherwise.

Question & Answers

Q1: When is consent considered invalid under BNS Section 28?

A1: Consent is invalid if:

• It is given under fear of injury or misconception of fact, and the person performing the act knows or should know of this.
• It is given by someone who is mentally unsound or intoxicated and cannot understand the nature and consequences of the consent.
• It is given by someone under twelve years of age, unless the context suggests otherwise.

Q2: What should be considered if the consent is given by a person under twelve years old?

A2: Consent given by a person under twelve years of age is generally invalid, unless the context indicates otherwise.

Q3: How does unsoundness of mind affect the validity of consent according to Section 28?

A3: If a person who is mentally unsound or intoxicated gives consent, it is invalid if they are unable to understand the nature and consequences of what they are consenting to.

Example

Example 1: If a person consents to a medical procedure under the belief that it will cure a condition that it actually does not address, and the doctor is aware of this misconception, the consent is not valid.

Example 2: If an individual under the influence of alcohol agrees to a contract but does not fully understand its terms, their consent is invalid due to intoxication.

Example 3: A child under twelve years old agrees to sell a toy, but this consent is not valid unless the context indicates that such an agreement is permissible.