Introduction of BNS 28
Bharatiya Nyaya Sanhita (BNS) Section 28 deals with the validity of consent in legal matters. It clarifies that consent is not considered valid if it is obtained under fear, misconception, or from individuals unable to understand the consequences of their actions due to unsoundness of mind, intoxication, or being under twelve years of age. This section ensures that only free, informed, and voluntary consent is recognized by law.
The Bharatiya Nyaya Sanhita (BNS) Section 28 replaces the old Indian Penal Code (IPC) Section 90.
What is section 28 of BNS ?
BNS Section 28 explains that consent must be given freely and with full understanding. If someone agrees to something because they are scared, misled, intoxicated, mentally unstable, or too young (under 12), their consent is not legally valid.
BNS Section 28 in Simple Points
Consent is not valid if it is given 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 if consent is given by a person of unsound mind, intoxicated, or by a child under twelve years of age, who is incapable of understanding the nature and consequences of that act.
(This provision corresponds to IPC Section 90, updated under BNS 2023.)
1. Meaning of Section 28
BNS Section 28 explains that not all consent is legally valid. If someone gives consent because they are scared, misled, or incapable of understanding due to unsoundness of mind, intoxication, or being under 12 years of age, such consent has no legal value. This means the law treats it as no consent at all.
2. Purpose of Section 28
The purpose of this section is to ensure that consent must be free, informed, and voluntary. It prevents misuse of the concept of consent in situations where a person is tricked, forced, or incapable of making a proper decision. The law protects vulnerable individuals (children, intoxicated persons, mentally unstable persons) from being exploited.
3. Essential Ingredients of Section 28
For consent to be invalid under this section, the following conditions apply:
- Consent under fear: If a person agrees because of threats or pressure, it is invalid.
- Consent due to misconception: If someone is misled or tricked into believing false information, their consent is not valid.
- Knowledge of invalidity: The person taking consent must know, or reasonably believe, that it was given due to fear or misconception.
- Mental unfitness: A person of unsound mind cannot give valid consent.
- Intoxication: A drunk or drugged person is incapable of giving valid consent if they cannot understand the consequences.
- Child under 12: Any consent by a child below twelve is legally invalid.
4. Punishment under BNS Section 28
This section itself does not impose punishment. Instead, it invalidates consent. If an act is done based on such invalid consent, the act may be treated as an offence under other provisions of law (e.g., sexual offences, fraud, contracts, etc.).
5. Examples of BNS Section 28 in Action
- Consent under fear: A woman agrees to hand over property because she was threatened with harm. The consent is invalid.
- Consent due to misconception: A person is tricked into signing a marriage document, thinking it is a job application. Such consent is void.
- Consent under intoxication: A drunk person “consents” to sell his land. This consent has no legal value.
- Child’s consent: A 10-year-old agrees to undergo a risky surgery. The child’s consent is invalid; only the guardian’s consent matters.
6. Importance of BNS Section 28
- Ensures real and voluntary consent is respected.
- Protects vulnerable groups like children, intoxicated persons, and mentally unfit individuals.
- Prevents exploitation by threats, fraud, or manipulation.
- Clarifies that invalid consent is treated as no consent in law.
- Carries forward and modernises IPC Section 90, aligning it with the reformed BNS framework.
Section 28 BNS Overview
BNS Section 28 states that consent is not valid if it is given out of fear, due to a misunderstanding, by someone who is mentally unfit, intoxicated, or by a child under twelve years old. The law requires that consent must be given freely, knowingly, and without pressure.
10 Key Points of BNS Section 28
1.Consent Under Fear
If a person agrees to something because they are afraid of being harmed, that agreement is not considered true consent. The law says consent must be given freely. For example, if someone agrees to give away their property because they were threatened with violence, this consent is not valid.
2.Misunderstood Consent
Consent that is given because of lies, fraud, or wrong information is also invalid. This is because the person is not agreeing to the real situation but to something false or misleading. For example, if a person agrees to a marriage because they were lied to about the partner’s identity, that consent cannot be accepted by law.
3.Knowing the Fear or Misunderstanding
If the other person knows that the consent was given due to fear or a mistake, then they cannot use that consent as valid. The law ensures that no one benefits from consent that was not given freely and with full understanding.
4.Mental Unfitness
People who are mentally ill or not in a sound state of mind cannot give valid consent because they cannot fully understand the results of their actions. For example, if a person with severe mental illness agrees to sign a contract, the law will not treat that consent as valid.
5.Intoxicated Consent
If someone is drunk or under the influence of drugs, and because of this they cannot think clearly or understand the consequences, then their consent is invalid. For example, if a drunk person is tricked into signing legal papers, that agreement will not stand in court.
6.Child’s Consent
Children under 12 years old cannot give valid consent in the eyes of law. This is because children at that age are not mature enough to understand the risks and results of their actions. For example, if a 10-year-old agrees to work in dangerous conditions, the law will not accept it as valid consent.
7.Context Matters
The situation in which consent is given is very important. If there is any sign of pressure, force, or lack of free will, the law may consider the consent invalid. For example, if someone agrees to something only because of family or social pressure, it may not be treated as true consent.
8.Legal Protection
This law is meant to protect people from being forced, misled, or tricked into giving consent. It ensures that people are only bound by decisions they made freely and with full understanding. This protects vulnerable people like children, the mentally unfit, or those under influence of drugs.
9.Invalid Consent Equals No Consent
If the consent is not valid under this section, it is treated as if no consent was given at all. This means any action taken on the basis of such consent is not legally protected. For example, if a child’s consent is used, it is equal to having no consent at all.
10.Used in Legal Cases
This section is often applied in courts when disputes arise about whether consent was valid. It is especially important in criminal cases, contracts, marriages, or medical treatment. The court always checks if the consent was free, informed, and given by a person capable of understanding.
Bharatiya Nyaya Sanhita Section 28
| Section | Offense / Principle | Key Difference | Punishment / Effect | Typical Use / Notes |
|---|---|---|---|---|
| BNS Section 28 | Establishes that consent is invalid if given under fear, misconception, or by persons incapable of understanding (unsound mind, intoxication, or children under 12). Only free, informed, and voluntary consent counts. | Modernised language and placement within the BNS framework; clarifies categories (fear, misconception, incapacity, intoxication, under-12). Emphasis on “knowing the consent was under fear/misconception”. | Not a penal provision per se — it renders consent void where criteria met. Acts relying on such invalid consent may attract penalties under other substantive provisions. | Frequently cited in cases involving contracts, sexual offences, fraud, and guardianship disputes. Courts examine surrounding circumstances to determine voluntariness. |
| IPC Section 90 (Old) | Provided that consent is not valid when given by reason of misconception or under fear, or by persons incapable of understanding (unsound mind, intoxicated persons, or minors), effectively nullifying such consent. | The BNS provision carries forward the same legal principle but uses clearer, updated phrasing and aligns the concept with the reformed code structure. | Like BNS 28, IPC 90 did not itself prescribe punishment — it made consent void where conditions applied; substantive offences could still be prosecuted. | Historically applied in similar contexts (fraud, sexual consent disputes, contracts). Case law under IPC 90 informs interpretation of BNS 28 unless BNS text significantly alters scope. |
BNS Section 28 FAQs
What makes consent invalid under BNS Section 28?
Consent is invalid if it is given under fear, due to a misunderstanding, by someone mentally unfit, intoxicated, or by a child under twelve.
Can a child under twelve give valid consent?
No, the law considers that children under twelve cannot give valid consent because they may not understand the consequences.
Does being drunk affect the validity of consent?
Yes, if someone is intoxicated and cannot understand what they are agreeing to, their consent is not valid.
What happens if someone gives consent under fear?
If someone gives consent because they are scared of harm, the consent is not legally valid.
Is consent valid if given due to a misunderstanding?
No, if consent is given because of incorrect or misleading information, it is not valid under this section.
Conclusion
BNS Section 28 strengthens the principle that only free, informed, and voluntary consent is valid in law. It protects vulnerable individuals — such as children, intoxicated persons, and those with unsound minds — from exploitation. It also prevents misuse of consent obtained under fear or fraud. By replacing IPC Section 90, this new provision under BNS makes the law clearer, more citizen-friendly, and aligned with the modern justice system.
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Finished with BNS Section 28 ? Continue exploring the next provisions of the Bharatiya Nyaya Sanhita (BNS), 2023. Each section includes explanations, examples, and plain-language breakdowns for easy understanding.
- BNS Section 28 : Consent known to be given under fear or misconception
https://marriagesolution.in/bns_section/bns-28/ - BNS Section 29 : Exclusion of acts which are offences independently of harm caused
https://marriagesolution.in/bns_section/bns-29/ - BNS Section 30 : Act done in good faith for benefit of a person without consent
https://marriagesolution.in/bns_section/bns-30/ - BNS Section 31 : Communication made in good faith
https://marriagesolution.in/bns_section/bns-31/ - BNS Section 32 : Act to which a person compelled by threats
https://marriagesolution.in/bns_section/bns-32/ - BNS Section 33 : Act causing slight harm
https://marriagesolution.in/bns_section/bns-33/ - BNS Section 34 : Things done in private defence
https://marriagesolution.in/bns_section/bns-34/ - BNS Section 35 : Right of private defence of the body and of property
https://marriagesolution.in/bns_section/bns-35/
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