Consent and Compulsion

The maxim volenti non fit injuria, which states that harm caused with agreement cannot be
considered an injury, has some application in criminal law. The victim's consent, subject to
specific restrictions imposed in the public interest, acts as a mitigating element. Modern
criminal law, on the other hand, does not exempt a person from criminal accountability for
acts that can endanger or it endangers human life. Nonetheless, a doer is immune from
criminal culpability if he causes or risks causing injury in good faith, with or without the
afflicted’s permission, for the 'benefit' of the sufferer.

Sections 87 to 93 of the Indian Penal Code deals with consent and compulsion. Consent is
dealt with in Sections 87 to 93 of the Code as a general exception. Sections 87 and 91 deal
with consent as a defence, while sections 88, 89, 92, and 93 deal with immunity for injury
done in good faith, with or without consent, for the benefit of the sufferer. And section 90 of
the Code defines what constitutes consent for the purposes of the Code. With certain
limitations, Section 94 exempts a person from criminal culpability for conduct committed
under duress or compulsion.

What is meant by Consent?

Consent refers to something that is done voluntarily and with intention. It is a meeting of
minds. It entails a calculated use of intelligence based on an understanding of the act's
significance and moral consequences. It is a rational act accompanied by reflection, with the
intellect weighing the good and evil on each side as though in a balance. It presupposes three
things: physical strength, mental strength, and the ability to use both freely and seriously. “A
mere act of submission, or knowledge of the risk involved, therefore, does not amount to
consent.”

Though IPC does not define what is meant by consent, however section 90 of the penal code
describes as to what does not constitute to be consent. It portrays consent in a negative light.

Section 90. Consent known to be given under fear or misconception

A consent is not such a consent as is 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

1|Page
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.
A plain reading of section 90 indicates that assent granted out of ‘fear of injury’ or
‘misconception of fact’ is not really ‘consent’. Consent provided by a person of unsound
mind or drunk, who is unable of understanding the nature and consequences of the consented
act, or a person under the age of 12 is not valid, unless the context indicates otherwise.
Finally, Section 90 states that for permission to be a basis for avoiding criminal culpability, it
must be genuine and not tainted by fear, fraud, or immaturity.

The phrase ‘misconception of fact' used in section 90 relates to ‘misconception' about the true
character of the conduct, that is, in relation to its effect and consequence.

Fraud or misrepresentation of facts might lead to a factual misunderstanding. As a result,

permission based on misrepresentation of facts does not provide a defence to the person who
acts on that consent. Misrepresentation of facts, on the other hand, must be associated with
deception or deception in order to fall within the scope of section 90.

‘Consent granted on the basis of a promise to be fulfilled at an unknown future date does
not ipso facto void the consent’.

For the first half of section 90 to apply, two elements must be met: first, the permission was
provided out of ‘fear of injury’ or ‘mistake of fact,’ and second, the accused was aware of the
fact or had cause to believe that the consent was granted out of fear or misconception.

It is important to note that section 90 cannot be refereed to as the exhaustive definition of the
word consent. he traditional meaning and idea of 'consent' are not meant to be disregarded.
The Supreme Court and the High Courts have not only followed s 90's phraseology, but have
also followed the derivation of the word ‘consent.'

Why is Consent a General Exception?

The law makers believe that the general rule should be that nothing should be considered an
offence because of any harm that it may bring to a person of legal age who, undeceived, has
given his or her free and informed permission to suffer or risk that harm.

2|Page
Intentional Death or Grievous Hurt may not be caused with Consent

Section 87. Acts not intended and not known to be likely to cause death or grievous
hurt, done by consent.

Nothing that is not intended to cause death or grievous harm, and that is not known by the
doer to be likely to cause death or grievous harm, is an offence because of any harm that it
may cause, or be intended to cause, to any person over the age of eighteen who has given
consent, whether express or implied, to suffer that harm; or because of any harm that it may
be known by the doer to be likely to cause to any such person who has given consent,
whether express or implied, to suffer that.

 Absence of Intention
The words in section 87 of IPC, ‘Nothing that is not intended to cause death or
grievous harm’ indicate that the doer's mens rea, or purpose to cause death or grave
harm, must be wholly absent in order to profit from the section. It forbids a man from
consenting to anything that is planned or known to be likely to cause his death or
serious injury. Consent does not excuse the intentional killing of someone or the
infliction of great bodily harm. It prohibits intentional death by agreement in any way,
shape, or form. However, there might be a purpose to harm that isn't as bad as serious
harm.
Consent as a defence can only be taken if it follows two conditions: (1) harm, short of
grievous hurt, is caused by consent; (2) harm resulting even in death, if, it was not so
intended or it was without knowledge that it is likely to cause death.
 Absence of Knowledge
Section 87 requires not only the lack of purpose to cause death or serious injury, but
also the lack of knowledge by the perpetrator that the act is likely to cause death or
serious injury. As a result, the section's applicability can be determined not by the fact
of consent provided or the harm inflicted, but by the intent and knowledge of the
person who caused it. Consent under section 87 must be given not only to the act, but
also to the injury or risk of harm that the conduct is likely to create. As a result,
consenting to a procedure without knowing the potential for harm or risk of injury is
insufficient.
 Consent by whom

3|Page
 The question of who should consent is the next one to consider when it comes to
consent. According to Section 87, the consent must be obtained by the individual who
is being harmed and must be over the age of 18. The accused is not excused from
criminal accountability because he or she acquired consent from a person under the
age of 18 and acted on it.
 Express or Implied Consent
Consent can be both express as well as implied under this section. In terms of criminal
law, the word 'implied consent' refers to either: (1) consent through acts and conduct;
or (2) consent presumed, while never granted or in any manner represented.
 Consent valid to Offences Relating to Injury to Body Alone
Only offences of a personal nature are immune from criminal culpability under
section 87 because the victim consented to the injury. In the case of serious and public
offences, consent is irrelevant. Consenting to an offence of a public nature does not
make it any less of an offence, nor does it provide the perpetrator immunity from
punishment.
 Evidence of Consent
The issue of whether or not consent was provided is always a question of fact that
must be resolved in front of the trial court by presenting evidence. Thus, whether
consent was gained without knowledge, by misunderstanding, or by fraud, or whether
an implied consent existed, are matters of fact that the accused person must prove in
order to benefit from the exceptions stipulated under sections 87, 88, and 89 of the
IPC. Circumstantial evidence can also be used to prove the fact of consent.

Benevolent Acts with or without Consent

Sections 88, 89, and 92 deal with instances in which the conduct that causes the harm to a
person is done in good faith for the benefit of that person.

Section 88. Act not intended to cause death, done ny consent in good faith for person’s
benefit - Nothing, which is not intended to cause death, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause, or be known by the doer to be likely
to cause, to any person for whose benefit it is done in good faith, and who has given a
consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

Section 89. Act done in good faith for benefit of child or insane person, by or by consent
of guardian - Nothing which is done in good faith for the benefit of a person under twelve

4|Page
years of age, or of unsound mind, by or by consent, either express or implied, of the guardian
or other person having lawful charge of that person, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause or be known by the doer to be likely
to cause to that person:

Provisos--Provided--

First. --That this exception shall not extend to the intentional causing of death, or to the
attempting to cause death;

Secondly. --That this exception shall not extend to the doing of anything which the person
doing it knows to be likely to cause death, for any purpose other than the preventing of death
or grievous hurt, or the curing of any grievous disease or infirmity;

Thirdly. --That this exception shall not extend to the voluntary causing of grievous hurt, or to
the attempting to cause grievous hurt, unless it be for the purpose of preventing death or
grievous hurt, or the curing of any grievous disease or infirmity;

Fourthly. --That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.

Section 92. Act done in good faith for benefit of a person without consent. -Nothing is an
offence by reason of any harm which it may cause to a person for whose benefit it is done in
good faith, even without that person's consent, if the circumstances are such that it is
impossible for that person to signify consent, or if that person is incapable of giving consent,
and has no guardian or other person in lawful charge of him from whom it is possible to
obtain consent in time for the thing to be done with benefit:

Provisos--Provided--

First. --That this exception shall not extend to the intentional causing of death, or the
attempting to cause death;

Secondly. --That this exception shall not extend to the doing of anything which the person
doing it knows to be likely to cause death, for any purpose other than the preventing of death
or grievous hurt, or the curing of any grievous disease or infirmity;

Thirdly. --That this exception shall not extend to the voluntary causing of hurt, or to the
attempting to cause hurt, for any purpose other than the preventing of death or hurt;

5|Page
Fourthly. --That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.

Provisos to Sections 89 and 92

Sections 89 and 92 deal with instances in which the person who has been harmed has not
given consent for the harm which is done. Children under the age of 12 and adults of unsound
mind are covered under Section 89, which means they lack the legal capacity to consent. As a
result, consent is provided on their behalf by guardians or legal guardians. Section 92 applies
in emergency cases where the person who has been harmed is not physically capable of
giving consent or where it is not practical or possible to obtain the consent of the guardians.
The final result of both of these rules is that the act in question is carried out without the
agreement of the person who has been hurt. As a result, the legislature deemed it necessary to
include some additional safeguards, as well as the need that the doer act in good faith.
Therefore, the provisos were added.

No Criminal Intention to Cause Death

All three sections state that the act causing the harm should not be done with the intention of
causing death. There should be no intent to cause death in any of these instances, even if the
perpetrator is aware that the act is likely to cause death. As a result, a distinction is made
between 'intention' and 'knowing.'

For the benefit of the Person

If an accused seeks to avoid criminal culpability under any of these three sections, he must
show that the act was done not just without the purpose to cause death, but also for the
'benefit' of the person involved.

Consent

The individual who has been harmed must consent under section 88. Section 89 deals with
harm caused for the benefit of a child under the age of 12 or a person of unsound mind,
agreement from the guardian or other person in lawful care of that person is required. Section
92 deals with emergency situations where it may not be practical or possible to seek the
consent of either the person harmed or the guardian.

Good Faith

6|Page
All three sections stipulate that the person who causes the harm must not only behave in good
faith, but also without the intent to inflict death or serious injury.

Corporal Punishment by the Teacher

A modest corporal punishment administered by a teacher in good faith for the purpose of
preserving school discipline or instilling good habits in a kid does not constitute an offence.

In the case of KA Abdul Vahid v. State of Kerala1, the Kerala High Court, relying on the M
Natessan dictum, also held that corporal punishment administered by a school teacher to a
student with the goal of maintaining discipline and instilling in him the awareness of, and
adherence to, positive qualities is protected under Sections 88 and 89 of the Code.

However, sections 88 and 89 do not apply to excessive and unmanageable corporal

punishment.

Where Consent does not Absolve a Doer

Section 91. Exclusion of acts which are offences independently of harm caused - The
exceptions in sections 87, 88 and 89 do not extend to act s which are offences independently
of any harm which they may cause, or be intended to cause, or be known to be likely to
cause, to the person giving the consent, or on whose behalf the consent is given.
It is important to note that, the surgeon's immunity would be granted by the patient's consent,
even if the victim was harmed during the surgery. If, on the other hand, the surgery done is
illegal and amounts to an offence, such as inducing miscarriage, the matter would fall under
section 91 rather than section 88.

Communication made in Good Faith for ‘Benefit’

Section 93. Communication made in good faith - No communication made in good faith is
an offence by reason of any harm to the person to whom it is made, if it is made for the
benefit of that person.
Section 93, when read with its illustration, is intended to shield individuals, notably medical
practitioners, from injury caused by communications made in good faith and for the benefit
of the patient that cause harm to the recipient. The following are the key elements of this
provision: first, the communication must be made in good faith, and second, it must be made
for the advantage of the person to whom it is communicated.
1
(2005) Cr LJ 2054 (Ker).

7|Page
Compulsion by Threats or Duress per Minas

Compulsion is a limitation on a person's will in which a man is persuaded to do something

that his judgement disapproves of, and if the decision is left to him, he will reject it. The
notion is based on the well-known maxim, “actus me invito factus non est meus acts”, which
states that an act performed against my will is not my act, and hence I am not liable.

Section 94. Act to which a person is compelled by threats - Except murder, and offences
against the State punishable with death, nothing is an offence which is done by a person who
is compelled to do it by threats, which, at the time of doing it, reasonably cause the
apprehension that instant death to that person will otherwise be the consequence:

Provided the person doing the act did not of his own accord, or from a reasonable
apprehension of harm to himself short of instant death, place himself in the situation by
which he became subject to such constraint.

Offences to which Section 94 is Applicable

The benefit of Section 94 is applicable to all the offences under this code, except for two
namely, murder and the offences against state punishable with death.

Exclusion of Murder and Offences against the State Punishable with Death

The advantage of this section is not available in the case of murder and other crimes against
the state that are punishable by death. This means that a person who commits a murder while
facing instant death cannot seek refuge under this provision. This is most likely based on the
idea that a man cannot kill another to preserve his own life. However, a person who, under
danger of immediate death at the hands of murderers, aids and abets murder and the offence
of inducing the disappearance of murder evidence is entitled to the protection of section 94.
However, a person who collaborates in the commission of a murder under the threat of instant
death is ineligible for the section's protection.

Threat of Instant Death

The threat under which the conduct was performed must be a threat of instant death if the act
is not performed in order to qualify for the exception under this clause. The threat should not
be anything less than threat of instant death. If the danger of death ceases to exist in between,
then the accused cannot take benefit of this section as the threat is not instant at that point of
time.

8|Page