In this article, Akshita Gopal discusses the legal definition of free consent in India. 

What is the legal definition of free consent in India?

Mind is a complicated organ, it does a lot of work and affects our daily lives greatly. Before doing any act, there is thought in our mind, we process and analyze it, we may agree with the thought and then we commit that thought into action. The stage of agreeing with thought, in layman language, can be called as consenting.

Merriam- Webster’s Dictionary for Law defines consent as, “the voluntary agreement or acquiescence by a person of age or with requisite mental capacity who is not under duress or coercion and usually who has knowledge or understanding” Deciphering the definition, we can extract the essentials and thus, consent is:

1. Voluntary agreement or acquiescence
2. Person must be of:
   1. Required age by law/ Major age
   2. Sound mind
3. Not given under coercion or duress
4. Knowledge or understanding of the act for which consent is given

But the question is, what is the legal definition of Free consent in India? Law is broadly divided in two categories: Civil law and Criminal law. We shall look into what does free consent mean in these spheres in India.

Civil Law in India

Indian Contract Act, 1872 (ICA)

The basis of any transaction is an agreement , a contract which binds both the parties, then may it be employment contract, or lease or sale agreement. Contract law is the foundation of other civil laws like Transfer of Property Act, Succession Act, Family laws, Company Act etc. Therefore to have a clear picture of what free consent is in civil law in India, we shall look into Indian Contract Act for the same.

Section 13 of ICA defines consent as, “Two or more persons are said to consent when they agree upon the same thing in the same sense” which means, to consent it is necessary that both the consenting parties are consenting over same subject matter, and in the same manner.

To decipher the definition, we must look closely into certain terms. What does the term “thing” mean in the definition? The same thing must be understood as the whole content of the agreement, i.e., from delivery of object materials, payments, or to any acts or execution of promises. For an effective contract, there must be ad idem, which is meeting of minds.

If there is no consensus ad idem, meeting of minds, on the material terms of the contract, then such contact will be void.

Raffles v Wichelhaus

Parties came into the contact for delivering of cotton. The terms were such that the cotton would be delivered to the defendant on Liverpool port by the ship named, “Peerless” departing from Bombay. There were two ships named Peerless, one departing in October andone in December. Claimant delivered the cotton on the December ship, but the defendant did not pay as they contended that they thought that cotton would be delivered on the October ship.

Claimant’s suit for breach of contract was dismissed by the court by stating that there was no consensus ad idem on the material term of the contract, therefore there is no binding contract.

However, not every contract where parties do not agree in same manner and same subject shall be non- binding.

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Smith v. Hughes

Queen’s Bench decided that irrespective of the real intention, if the man (A) conducts himself in such a manner that a reasonable man (B) would believe that A is assenting to the terms proposed by B, and upon such beelief B is entering into the contract , then A would be bound as if he had intended to agree upon B’s terms. The gist been, that even if there is no meeting of mind, but A’s conduct is such that B believes that A is assenting to B’s conditions, the contract shall not be voidable.

Section 14 in furtherance of Section 13, defines free consent as consent which is not caused by coercion (section 15), or undue influence (section 16), or fraud (section 17), or misrepresentation (section 18), or mistake (sections 20, 21 and 22).

It is important to note, that not every consent is a free consent. Agreeing on same subject and in same manner may constitute “”consent”, but if such consent is caused by certain external force like coercion, fraud, etc, iit shall not constitute free consent.

“Caused by”, meaning and importance

The definition given in Section 14 uses the term ‘caused by.’ it has the implication that if consent is due to, or because of, coercion, fraud, undue influence, misrepresentation or mistake, such consent will not be called as free consent.

It is important that such external factors mentioned in the section, must be instrumental for giving consent. If there were such external factors available, but the they were remote or non-instrumental in obtaining consent, or such consent was given irrespective of coercion or undue influence, such consent will fall under the definition of free consent.

Coercion (Section 15): Committing, or threatening to commit the any act forbidden by IPC, or unlawful detention, or threat to detain any property to obtain the consent of the party.

Ammiraju v. Seshamma court held that a release executed as a result of a threat of committing suicide does not fall under coercion because an act of suicide is not punishable under IPC, and forbidden is construed only in light of what is punishable.

Undue Influence (Section 16): Contract shall be deemed to be affected by the factor of undue influence when one of the parties is in dominant position to influence the will of another and obtain an unfair advantage over other.

A  person shall be considered in a dominant position when,

1. He holds an apparent or real authority over other
2. He is in a fiduciary relationship with another
3. He contracts with a person whose mental capacity is temporarily or permanently affected due to illness age, mental or bodily distress

Mannu Singh v Umadat Pande, spiritual advisor induced the plaintiff to  transfer him his whole property with the promise of securing a benefits in the next life. Such contract was held to be affected by undue influence.

Fraud(Section 17): an act of:

1. active concealment of fact
2. suggestion of a fact, which he knows to be not true
3. Promise made without any intention of performing it
4. Any act or omission, which law considers as fraudulent
5. Any other act to deceive

Shall be deemed to be a fraudulent act under section 17.

RC Thakkar v Gujarat Hsg Board, Court held that the cost estimates given by the authorities in the tender notices were held to be fraud because authorities, in real, did not calculated the estimated cost of work, and such material representation knowing to be false, is a fraudulent act.

Misrepresentation (Section 18): any act of:

1. Positive assertion made on the belief that such assertion is true, however it is false
2. Breach of duty without an intent to deceive
3. Causing a party to an agreement, to make a mistake as to the substance of the thing, however innocently

Shall be deemed to be an act of misrepresentation.

In Nokhia v. State of Himachal Pradesh, Court held that when a consent is given on the strength of the representation regarding payment of compensation, and such payment is not made for an unreasonably long period shows that the party never had the intent to act upon such representation, therefore it falls under misrepresentation.  

In gist of the above discussion, the consent in civil law shall be deemed to be free when:

1. Both the parties assent on the same subject manner
2. When there is consensus ad idem, that is, both parties consent in the same sense
3. When the consent is not caused by coercion, fraud, misrepresentation, undue influence, mistake of material fact by both the parties, or mistake of fact by one party

Criminal Law in India

Like contract act, Indian Penal Code is said to be the foundation of criminal law in India. Penal code defines various offences and penalizes them. Similar to the above discussion, we shall look into the definition of free consent in IPC.

In the code, free consent is nowhere defined. However Section 90 does elaborates upon what does not amount to a free consent under the Code.

Section 90 says, “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

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.”

This means, that every such consent which is either obtained:

1. under fear of injury, or misconception, or the wrong does is aware that the person is under the fear of injury or misconception, or
2. by an insane person, or
3. by a child under 12 years of age, shall not constitute as consent under the Code.

• Fear of injury or misconception of fact

Unlike contract law, fraud or undue influence shall not vitiate the consent. Offences regarding the same are being dealt under different sections. However, the consent obtained under fear of injury shall vitiate the consent given under the fear. In R v Day court held that an adult submitting to an outrage is similar to the child submitting to a strong man, because both are overpowered by fear, and such submission will not be equated with consent.

Similarly, a consent has no value if it is based on misrepresentation of fact. Suppose, a doctor misrepresented a medicine and told the patient that the medicine would cure him, believing the representation made by the doctor, patient consumed it and died, here the doctor cannot take the defence that the patient consented for the act because such consent was based upon misconception, misrepresentation.

In Deelip Singh @ Dilip Kumar vs State Of Bihar, the court pointed out that section 90 has two parts. First part says that the person must have consented under fear of injury or misconception of fact. And second part says that the wrongdoer was aware that the consent has been given under such circumstances. When both the elements would be established/ proved, only then such consent shall not amount to free consent. The same has been pointed out in Deepak Gulati v State of Haryana.

1. Insane person and a person under the age of 12 years.

Consent by a lunatic or a child under age of 12 years shall not be construed as a free consent. The roots can be traced to section 82, 83 and 84 of IPC, which states that any wrong doer under the age of seven years, between the age group of 7- 12 years who have not attained the maturity and of unsound mind, shall not be tried under the Code because the law assumes that such category do not have the capacity to understand the nature and intensity of the act that they are committing. On the same lines, such persons are unable to judge the nature of acts they are consenting, and therefore they cannot give free consent.

It must be noted that Section 90 says that consent by a person under the age of 12 years is not valid. Section 87 says, consent given by a person above the age of 18 years for an act which can cause harm shall be a valid consent. The consent by a person between the age of 12 and 18 years is not clearly stated by any provision and is ambiguous.

Rape: Consent or no consent?

The explanation clause of section 375 states, “—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. ”

Section 114A of Evidence Act, puts the onus of proving consent on the accused once the commission of sexual intercourse by the accused is established. Section 146 of Evidence Act says that questioning the general moral character of the victim is not allowed and it shall not be a key to determine commission of rape. Despite of such progressive provisions, there is alway a loop hole from where the injustice peeks in.

Where there is express consent or denial, there is no much sphere left for ambiguity. But the part of definition which says ‘agreement by gestures or any form of nonverbal communication’ it is upto judiciary to interpret whether there was consent or not. This sphere of implied consent, or nonverbal communication leads to a grey area, where judiciary has to decipher the consent or denial.

Despite of the progressive in Tukaram v State of Maharashtra, Supreme court acquitted the accused from the charges of rape on the ground that the person against whom the rape was alleged, was found to be habitual to sexual intercourse, and therefore her voluntary consent was implied.

In Jindal University gang rape case, the judgement of Punjab and Haryana High court reflects the patriarchy at peak, prevalent in the society. The victim’s character and denial to such sexual intercourse was questioned on the ground that she smokes, consumes alcohol and has condoms and sex toys.

In Mahmood Farooqui v. State, Delhi High Court held that the sexual intercourse shall not amount to rape under section 375 because, “an expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape… Instances of woman behavior are not unknown that a feeble no may mean a yes.” Such decision of Delhi High court interpreting a woman’s feeble no into a yes, is rather a shocking and disastrous precedent.

Judiciary’s such interpretation makes one wonder that where really are we heading? How can habits play a key role in determining a woman’s consent?

Medical treatment: Informed consent?

Medical treatment or medical facilities has an important and necessary presence in an individual’s life because during such treatment one gives away his/ her autonomy over his body and lets the doctor treat. Therefore, it becomes more important that the patient must be well informed regarding what he is consenting to.

Supreme court in Samira Kohli vs. Dr. Prabha Manchanda and Another discussed the essentials regarding the informed consent of the patient. Supreme court said that it is the duty of the doctor to provide information to the patient before treating. The information must be about the nature of the treatment, its benefits, its consequences, risks, is there any alternative method, and the risk involved if the patient do not undergo the specific treatment.

In addition to this, the consent of the patient must be voluntary and he must have capacity and be competent to give such consent.

Supreme court in Martin F. D’Souza v. Mohd. Ishfaq held that doctor will not conduct any experiment on patient’s body without his written consent. Moreover, the consent for a specific treatment shall not be constituted as consent for some other treatment.

Exception: Section 92, IPC

Section 92, IPC serves as an exception. It says that any act done in good faith and for the benefits of the person without his consent, shall not be considered as an offence.

Illustration: A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.

Organ Donation: Expressed and Implied authority

An act with consent and against the consent, which shall determine whether the act is of organ donation or organ trafficking. Section 3 of Transplantation of Human Organs and Tissues Act, 1994 discusses “Authority for removal of human organs or tissues or both.” the authority is given by the donor of the human organs/ tissues. The section talk about expressed as well as implied consent for donation.

Section 3(1) and section 3(2) of the Act says that the donor, in presence of two or more witnesses, in writing authorizes the donation of organs before or after his/ her death, it shall be considered as an authority.

Section 3(3) of the Act says that when there is absence of expressed authority as mentioned above, if the donor has not raised any objection for donating his organs or tissues after his death, the person in possession of the dead body may donate the organs or tissues.

The scope of consent in the Act is very wide. What shall be constituted implied authority is vague, and needs to be more defined.

Conclusion

Free consent in civil law in India, is given expressly in the provision, but to specifically point out what the legal definition of free consent is in Criminal law in India is a little difficult, because there is no express provision for the same. However, the definition of free consent in criminal law can be extracted from different judicial pronouncements and section 90 which says what does not amount to free consent.

With the recent judgement of Delhi High court in Mahmood Farooqui v. State, reflecting the peak patriarchal psychology, it raises a need to reform criminal law in order to give a clear picture of what free consent is, so that there is less grey area left for the society to interpret a woman’s no into a yes.