Section 28 of the Bharatiya Nyaya Sanhita, 2023 explains when consent is not treated as legally valid consent for the purposes of the Sanhita. This provision is important because the mere existence of an apparent agreement does not necessarily mean that the person has given legally effective consent.
The section covers three major situations. First, consent may be invalid where it is obtained under fear of injury or misconception of fact, provided the person doing the act knows or has reason to believe that the consent resulted from that fear or misconception. Secondly, consent is not valid where the person giving it is, because of unsoundness of mind or intoxication, unable to understand the nature and consequences of what they are consenting to. Thirdly, subject to the context, consent given by a person under twelve years of age is not treated as the consent contemplated by the Sanhita.
The provision is therefore essentially concerned with the quality, voluntariness and legal capacity behind consent.
1. Meaning and Object of Section 28 BNS
The Bare Act begins with the important words:
“A consent is not such a consent as is intended by any section of this Sanhita”
This means that Section 28 does not merely define consent in the ordinary sense. It explains circumstances in which an apparent consent will not be recognised as the kind of consent required by another provision of the BNS.
This is particularly important because several General Exceptions rely upon consent. For example, Sections 25, 26 and 27 use consent as an important element in determining whether an act receives statutory protection.
Section 28 prevents a person from relying upon consent when that consent was not genuinely voluntary, informed or legally effective in the circumstances specified by the section.
The basic philosophy can therefore be expressed as follows:
Consent must be legally meaningful; mere words or apparent agreement are not always sufficient.
For example, if a person agrees to something only because they are under fear of injury, the law does not necessarily regard that agreement as genuine consent.
Similarly, if a person agrees because they are acting under a serious misconception of fact, or if they are incapable of understanding the nature and consequences of what they are agreeing to because of unsoundness of mind or intoxication, the consent may not receive legal recognition under Section 28.
2. Meaning of Consent Under Section 28
Consent ordinarily means a person’s voluntary agreement to something.
However, Section 28 shows that voluntariness and capacity to understand are important components of legally effective consent.
The section is concerned with whether the person actually made a meaningful choice.
For example, suppose A threatens B with injury and B agrees to A’s demand only because B is afraid of being injured. Although B has apparently agreed, the circumstances surrounding the agreement may prevent it from being treated as valid consent under Section 28.
Similarly, suppose B agrees to an act because B has a misconception about an important fact, and A knows or has reason to believe that B’s agreement is based on that misconception. Again, the consent is not treated as the consent contemplated by the Sanhita.
Therefore, Section 28 teaches an important principle:
Consent must not merely exist; it must be legally effective in the circumstances.
3. Consent Given Under Fear
Clause (a) of Section 28 deals with consent given:
“under fear of injury”
The important idea is that the person agrees because of fear of being injured.
The fear must therefore have a causal connection with the consent.
Suppose A threatens to physically injure B unless B agrees to a particular act. B, being afraid of the threatened injury, agrees.
Here, B’s agreement is not treated as genuine consent under Section 28 if the person doing the act knows or has reason to believe that B consented because of that fear.
The provision therefore protects the principle of voluntary choice.
Fear Does Not Mean Ordinary Nervousness
Not every feeling of nervousness or apprehension will necessarily amount to the statutory situation contemplated by Section 28.
The provision specifically refers to:
“fear of injury”
The circumstances must therefore indicate that the consent resulted from fear of injury.
The relationship between the fear and the consent is important.
The relevant question is:
Did the person give consent because of the fear of injury?
If the answer is yes, and the person doing the act knows or has reason to believe this, Section 28 may render the apparent consent legally ineffective.
4. Consent Given Under Misconception of Fact
Clause (a) also covers consent given:
“under a misconception of fact”
A misconception of fact means that the person gives consent because they are operating under an incorrect understanding of a relevant fact.
The important point is that the misconception must have a connection with the consent.
For example, if B agrees to an act because B believes a particular factual circumstance exists, but that belief is incorrect, the consent may be affected by misconception of fact.
However, Section 28 does not make every mistake or misunderstanding automatically sufficient.
There is an additional requirement: the person doing the act must:
“know, or have reason to believe”
that the consent was given because of that fear or misconception.
Thus, the provision contains an important safeguard.
It is not enough to establish merely that the person was mistaken. The circumstances must also satisfy the statutory requirement concerning the knowledge or reason to believe of the person doing the act.
5. Knowledge of the Person Obtaining Consent
This is one of the most important elements of Section 28.
Clause (a) requires that the person doing the act:
“knows, or has reason to believe”
that the consent was given as a consequence of fear or misconception.
This means that Section 28 is not simply concerned with the subjective condition of the person giving consent. It also considers the position of the person relying upon that apparent consent.
For example, suppose B gives consent because B is under a misconception of fact. If A genuinely has no knowledge and no reason to believe that B’s consent resulted from that misconception, the specific requirement of clause (a) concerning A’s knowledge or reason to believe may not be satisfied.
Therefore, the provision deliberately uses two expressions:
“knows”
and
“has reason to believe.”
The second expression is important because a person cannot necessarily escape the provision merely by claiming that they did not actually know, when the surrounding circumstances gave them sufficient reason to believe that the consent resulted from fear or misconception.
Simple Formula
Fear/Misconception + Causal connection with consent + Knowledge/reason to believe = Section 28(a)
6. Consent of Person Unable to Understand Nature and Consequence
Clause (b) deals with a different situation.
It provides that consent is not legally effective where it 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”
The focus here is not on fear or misconception.
The focus is on the capacity of the person to understand what they are consenting to.
A person may appear to agree to something, but if because of unsoundness of mind or intoxication they cannot understand the nature and consequences of the act, the law does not treat that agreement as the required consent.
This reflects an important principle:
A person should have sufficient understanding of the nature and consequences of the act for consent to have legal significance.
7. Consent of Person of Unsound Mind or Intoxicated Person
Section 28 specifically mentions two conditions:
“unsoundness of mind”
and:
“intoxication”
But the section does not say that every person with unsoundness of mind or every intoxicated person automatically gives invalid consent.
The critical statutory test is whether the person is:
“unable to understand the nature and consequence”
of what they are consenting to.
Therefore, the provision focuses on actual capacity to understand in relation to the consent being given.
Unsoundness of Mind
A person may suffer from a mental condition affecting their ability to understand the nature or consequences of a particular decision.
The relevant issue under Section 28 is whether the person was unable to understand the nature and consequence of what they were consenting to.
Intoxication
Similarly, intoxication alone should not be treated as automatically destroying consent under this clause.
The statutory requirement is that, because of intoxication, the person must be unable to understand the nature and consequence of the act.
Thus:
Intoxication + ability to understand ≠ automatically invalid consent under Section 28(b).
But:
Intoxication + inability to understand nature and consequence = consent not recognised under Section 28(b).
8. Consent of Person Under Twelve Years of Age
Clause (c) provides:
“unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”
This creates a special rule concerning children below twelve years.
The provision generally does not treat consent given by a person under twelve as the consent contemplated by the relevant provisions of the Sanhita, unless the context indicates otherwise.
The phrase:
“unless the contrary appears from the context”
is important and should not be ignored.
It means that the rule is subject to the context of the particular statutory provision in which consent is being considered.
Therefore, the provision should not be simplified into the inaccurate statement:
“Every consent by a child under twelve is invalid for every possible legal purpose.”
The actual language of Section 28 is more carefully qualified.
9. Section 28 and Section 27 — Important Connection
Section 27 specifically deals with:
“a person under twelve years of age, or person of unsound mind”
and allows certain beneficial acts to be done by, or with the consent of, the:
“guardian or other person having lawful charge”
Section 28, on the other hand, explains when consent itself is not treated as legally effective.
This creates an important connection between the two provisions.
For a child under twelve, Section 27 provides a special framework under which a guardian or lawful custodian can be involved in a beneficial act.
Section 28 explains why the child’s own apparent consent may not necessarily be sufficient where the section applies.
Therefore:
Section 27 = Guardian-based protection for beneficial acts
Section 28 = Circumstances in which apparent consent is not legally effective
10. Essential Ingredients of Section 28 BNS
Section 28 contains three distinct categories.
The first category concerns fear or misconception of fact.
There must be consent given under fear of injury or under a misconception of fact, and the person doing the act must know or have reason to believe that the consent resulted from that fear or misconception.
The second category concerns lack of understanding due to unsoundness of mind or intoxication.
The person giving consent must, because of unsoundness of mind or intoxication, be unable to understand the nature and consequence of what they are consenting to.
The third category concerns age.
Unless the context indicates otherwise, consent given by a person under twelve years of age is not treated as the consent contemplated by the Sanhita.
Therefore, the entire provision can be remembered as:
Fear/Misconception + Knowledge
OR
Unsoundness of Mind/Intoxication + Inability to Understand
OR
Under Twelve + Unless Context Indicates Otherwise
11. Fear vs Misconception of Fact
Although both appear in clause (a), they represent different situations.
Fear of Injury
Here, the person gives consent because they are afraid of being injured.
The problem is coercive pressure created by fear.
Misconception of Fact
Here, the person gives consent because they have an incorrect understanding of a relevant fact.
The problem is a factual misunderstanding affecting the decision.
| Fear | Misconception of Fact |
|---|---|
| Consent results from fear of injury | Consent results from an incorrect factual belief |
| Pressure/fear is central | Mistaken factual understanding is central |
| Person submits because of threatened harm | Person agrees because they misunderstand a fact |
| Knowledge/reason to believe of the person doing the act is required under clause (a) | Knowledge/reason to believe is also required |
Thus, although both fall under clause (a), the factual basis is different.
12. Misconception of Fact vs Mistake of Law
This distinction is extremely important in General Exceptions.
A misconception of fact concerns an incorrect understanding of a factual circumstance.
A mistake of law concerns an incorrect understanding of what the law permits, prohibits or requires.
Section 28 specifically uses:
“misconception of fact”
Therefore, it should not simply be expanded to include every misunderstanding of law.
Example of Fact
A person agrees to an act because they incorrectly believe a particular factual circumstance exists.
That may constitute a misconception of fact.
Example of Law
A person agrees because they incorrectly believe that the law permits the act.
That is fundamentally a mistake regarding law rather than a misconception of fact.
This distinction is particularly useful in examination questions because General Exceptions frequently distinguish between mistake of fact and mistake of law.
13. Free Consent vs Invalid Consent
Section 28 can be understood by comparing genuine consent with consent that the law does not recognise.
Free and Meaningful Consent
Consent is stronger when the person:
- makes a voluntary decision,
- understands what they are agreeing to,
- understands the relevant consequences, and
- is not agreeing because of fear or a relevant misconception.
Consent Under Section 28
The apparent consent becomes legally ineffective in the situations specifically identified by Section 28.
The person may technically say “yes,” but the surrounding circumstances may show that the agreement does not possess the legal quality required by the relevant provision.
Therefore:
A verbal “yes” does not automatically answer the legal question of consent.
The circumstances in which the consent was given matter.
14. Section 28 vs Section 25 BNS
Section 25 and Section 28 should be clearly distinguished.
Section 25 is concerned with situations where consent can provide protection for certain acts.
Section 28 explains situations where the apparent consent is not legally effective.
Section 25
Section 25 deals with an act done with the consent of a person above eighteen years where the statutory requirements concerning intention and knowledge of death or grievous hurt are satisfied.
Section 28
Section 28 says that consent is not the consent contemplated by the Sanhita in specified situations, including consent resulting from fear or misconception, inability to understand because of unsoundness of mind or intoxication, and, subject to context, consent of a person under twelve.
| Section 25 | Section 28 |
|---|---|
| Deals with consent as a basis for protection | Deals with invalid/non-effective consent |
| Person above 18 years | Special rules including under 12 |
| Consent is an important ingredient | Explains when consent is not legally sufficient |
| Concerns harm, intention and knowledge | Concerns voluntariness, factual understanding and capacity |
15. Section 28 vs Section 27 BNS
These two provisions are particularly connected because both deal with children and persons who may have difficulty providing legally effective consent.
Section 27
Section 27 provides protection for certain acts done:
“in good faith for the benefit”
of a child under twelve or person of unsound mind, by or with the consent of a guardian or person having lawful charge.
Section 28
Section 28 explains why consent given by certain persons may not itself qualify as legally effective consent.
For example, Section 28 specifically deals with a person who, because of unsoundness of mind or intoxication, cannot understand the nature and consequence of the act.
Thus:
Section 27 focuses on guardian-based authority for beneficial acts.
Section 28 focuses on the legal quality and validity of consent.
16. Illustrations and Practical Examples
Example 1 — Consent Under Fear
A threatens B with physical injury unless B agrees to an act. B agrees because B fears the threatened injury.
If A knows or has reason to believe that B’s consent resulted from that fear, the consent is not treated as the consent contemplated by Section 28.
Example 2 — Consent Under Misconception of Fact
B agrees to an act because B has an incorrect understanding of an important factual circumstance. A knows that B’s agreement is based upon that misconception.
Section 28(a) may apply because the consent was given under a misconception of fact and A knew or had reason to believe that the misconception caused the consent.
Example 3 — Intoxication
B is intoxicated and agrees to an act. If B nevertheless understands the nature and consequences of what B is agreeing to, intoxication by itself does not satisfy the test in clause (b).
But if the intoxication makes B unable to understand the nature and consequence of the act, the apparent consent is not treated as legally effective under Section 28(b).
Example 4 — Unsoundness of Mind
B, because of unsoundness of mind, is unable to understand the nature and consequences of an act to which B supposedly agrees.
Section 28(b) prevents that apparent agreement from being treated as the consent contemplated by the Sanhita.
Example 5 — Child Under Twelve
A child under twelve gives consent to an act.
Under clause (c), unless the contrary appears from the context, that consent is not treated as the consent contemplated by the relevant provisions of the Sanhita.
This is one reason Section 27 separately recognises the role of a guardian or person having lawful charge in appropriate beneficial situations.
17. Common Mistakes Regarding Section 28
Mistake 1 — Every consent is legally valid
This is incorrect.
Section 28 itself identifies circumstances where apparent consent is not treated as the legally contemplated consent.
Mistake 2 — Every mistake makes consent invalid
This is also incorrect.
Section 28 specifically refers to a misconception of fact and requires the additional statutory condition concerning the knowledge or reason to believe of the person doing the act.
Mistake 3 — Every intoxicated person’s consent is automatically invalid
Not exactly.
The statutory test is whether, because of intoxication, the person is:
“unable to understand the nature and consequence”
of what they consent to.
Mistake 4 — Every person with unsoundness of mind automatically lacks consent
The wording of clause (b) focuses on the person’s ability to understand the nature and consequence of the particular matter to which consent is given.
Mistake 5 — Child under twelve can never have any legally relevant consent
The actual language is more qualified. Clause (c) says:
“unless the contrary appears from the context”
Therefore, the statutory wording must be followed rather than using an absolute statement.
Mistake 6 — Guardian can consent to anything for a child
This is incorrect.
Section 27 contains significant restrictions, particularly concerning intentional death, attempts to cause death, certain acts involving likely death or grievous hurt, and abetment.
19. Quick Revision Table
| Situation | Position under Section 28 |
|---|---|
| Consent under fear of injury | Not treated as legally contemplated consent if the person doing the act knows or has reason to believe that consent resulted from the fear |
| Consent under misconception of fact | Not treated as legally contemplated consent where the statutory knowledge/reason-to-believe requirement is satisfied |
| Person unable to understand due to unsoundness of mind | Consent not recognised under clause (b) |
| Person unable to understand due to intoxication | Consent not recognised under clause (b) |
| Person under 12 | Consent generally not treated as contemplated consent, unless contrary appears from context |
| Main purpose | To prevent reliance upon legally ineffective consent |
FAQs on Section 28 BNS
What does Section 28 BNS deal with?
Section 28 explains situations in which apparent consent is not treated as the consent contemplated by the BNS, particularly where consent is obtained under fear or misconception of fact, where the person cannot understand the nature and consequence of the act because of unsoundness of mind or intoxication, or where the person is under twelve years of age subject to the statutory qualification.
Is consent given under fear valid under Section 28?
No, where the consent is given under fear of injury and the person doing the act knows or has reason to believe that the consent resulted from that fear, Section 28 does not recognise it as the required consent.
Is consent given under a misconception of fact valid?
Where consent is given under a misconception of fact and the person doing the act knows or has reason to believe that the consent resulted from that misconception, Section 28 treats it as not being the consent contemplated by the Sanhita.
Does intoxication automatically make consent invalid?
No. Section 28 requires that because of intoxication the person must be unable to understand the nature and consequence of what they are consenting to.
What is the rule regarding consent by a person under twelve?
Section 28 provides that, unless the contrary appears from the context, consent given by a person under twelve years of age is not treated as the consent contemplated by the Sanhita.