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Section 28 BNS: Consent Known to Be Given Under Fear or Misconception

Section 28 of the Bharatiya Nyaya Sanhita, 2023 explains when apparent consent is not legally treated as consent for the purposes of the Sanhita. It covers consent affected by fear of injury, misconception of fact, mental illness, intoxication, and, subject to context, consent given by a person under twelve years of age.

Law: Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023)
Provision: Section 28
Chapter: Chapter III - General Exceptions
In force: July 1, 2024

Text of Section 28 BNS

28. Consent known to be given under fear or misconception.

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 mental illness, 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.

What Section 28 Means

Section 28 is a general rule about the legal quality of consent. It does not create a separate offence by itself. Instead, it becomes relevant when another provision of the BNS makes the existence, absence, or validity of consent material to criminal liability.

The provision identifies situations where a person may appear to agree to an act, but the law does not treat that agreement as valid consent. The focus is not only on the state of mind of the person giving consent. In clause (a), the person doing the act must also know, or have reason to believe, that the consent resulted from fear of injury or a misconception of fact.

Conditions That Can Invalidate Consent

1. Consent given under fear of injury

Consent is not valid under clause (a) where it is given because of fear of injury and the person doing the act knows, or has reason to believe, that the fear caused the consent.

2. Consent given under misconception of fact

Consent is also excluded where it is given because of a misconception of fact and the person doing the act knows, or has reason to believe, that the misconception caused the consent. The words of the section require a connection between the misconception and the consent.

3. Inability to understand due to mental illness or intoxication

Under clause (b), consent is not valid where a person, because of mental illness or intoxication, is unable to understand the nature and consequence of what he or she is consenting to.

4. Consent by a person under twelve years of age

Under clause (c), unless the context indicates otherwise, consent given by a person under twelve years of age is not treated as consent for the purposes of the Sanhita.

Relevant BNS Definitions

Child: Section 2 defines a child as a person below eighteen years of age. Section 28(c), however, specifically uses the narrower threshold of under twelve years for this consent rule.
Injury: Section 2 defines injury as any harm whatever illegally caused to any person in body, mind, reputation, or property.
Act: Section 2 provides that an act denotes a series of acts as well as a single act.

Key Legal Points

  • Section 28 concerns the validity of consent; it does not itself prescribe imprisonment, fine, or any other punishment.
  • For fear or misconception under clause (a), the wording expressly requires knowledge or reason to believe on the part of the person doing the act.
  • For clause (b), the decisive issue is whether mental illness or intoxication made the person unable to understand the nature and consequence of the consent.
  • The under-twelve rule in clause (c) applies unless the contrary appears from the context.
  • The provision should be read with the particular BNS offence or exception in which consent is legally relevant.

Relationship With the Earlier IPC Provision

Section 28 BNS occupies the place previously associated with Section 90 of the Indian Penal Code, 1860 on consent given under fear or misconception. For conduct occurring after the commencement of the BNS, the applicable BNS provisions should be checked. Earlier conduct may require examination of the repeal and saving provisions and the law in force at the relevant time.

Important: This page is a legal information resource. Application of Section 28 depends on the facts of each case and on the substantive offence or exception involved.

Frequently Asked Questions

Does Section 28 BNS punish a person for taking invalid consent?

No. Section 28 is a general provision defining when consent is not legally recognized for the purposes of the BNS. Criminal liability and punishment, if any, arise under the substantive offence provision applicable to the facts.

Is every mistaken belief a misconception of fact under Section 28?

The section requires that consent be given in consequence of a misconception of fact and, under clause (a), that the person doing the act knows or has reason to believe that the consent resulted from that misconception. Whether these requirements are satisfied is a fact-specific legal question.

What age is specifically mentioned in Section 28 for consent?

Clause (c) refers to a person who is under twelve years of age, unless the contrary appears from the context.