Code: Section 28 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 of Section 28 BNS
Section 28 of the Bharatiya Nyaya Sanhita (BNS), 2023 establishes conditions where consent is not legally valid. It applies in situations where:
1. Consent Given Under Fear or Misconception
- If a person consents out of fear of injury or due to a misconception of fact, and
- The individual obtaining consent is aware of this fear or misconception,
- Then such consent is invalid.
2. Consent Given by an Intoxicated or Mentally Unsound Person
- If a person is mentally unstable or intoxicated,
- And cannot comprehend the consequences of their consent,
- Then such consent is not legally recognized.
3. Consent Given by a Child (Below 12 Years)
- A child under 12 years of age is legally incapable of giving consent unless the law states otherwise.
🔗 Related: Section 27 BNS – Acts Done in Good Faith for Benefit of Child or Person of Unsound Mind
Illustrations of Section 28 BNS
Example 1: Consent Under Fear of Harm
A person signs a contract because they are threatened with harm. Since their consent was given under fear, it is not valid under Section 28.
Example 2: Consent Based on a False Fact
A fraudster tricks an elderly person into signing away their property by lying about a government policy. Since the consent was obtained through a misconception, it is legally invalid.
Example 3: Consent by an Intoxicated Person
A heavily intoxicated person signs a loan agreement without understanding its consequences. Since they were unable to comprehend the nature of their consent, the agreement can be challenged under Section 28.
Example 4: Consent by a Child Below 12 Years
A 10-year-old child “agrees” to work in a factory. As per Section 28, such consent is not valid as the child is below 12 years of age.
🔗 Related: Section 29 BNS – Acts Against Will or Without Consent
Common Questions & Answers on Section 28 BNS
1. What happens if someone consents out of fear?
✅ If consent is obtained through threats or intimidation, it is not valid under Section 28.
2. Can an intoxicated person give legal consent?
🚫 No. If a person is too intoxicated to understand the consequences, their consent is invalid.
3. Is a child’s consent legally valid?
🚫 Generally, no. A child below 12 years cannot legally consent unless the law explicitly allows it.
4. What if someone lies to obtain consent?
✅ If consent is given due to misrepresentation or fraud, it can be challenged in court.
🔗 Also Read: Section 30 BNS – Acts Not Intended to Cause Death
Conclusion
Section 28 of the BNS, 2023 ensures that consent given under coercion, misconception, or incapacity is not legally binding. This protects individuals from being forced or tricked into agreements they do not fully understand.
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