Author Details:-
ANJALI BARMOLA 3rd Year, BA LLB South Calcutta Law College, Kolkata
INTRODUCTION
Consent as a generic term means voluntary agreement to an act. Still, in legal jargon, the validity of consent plays a pivotal role in differentiating a regular act from a felony, where valid consent makes up for a medical examination, without it becomes harassment and a non-consensual sexual act constitutes rape. Consent is closely related to the Right to life and personal liberty[[i]] and is integral to an individual’s autonomy and that is why it needs to be valid in one’s conscious and the eyes of law.
Consent may be expressed verbally or in writing or implied, where it is inferred from the acts of the person. Both are deemed to be valid in Indian law in cases where it is obtained through means and capacity which is established by the law. A valid consent is stated in different statutory provisions in different contexts but the crux of a valid consent can be sought once all the provisions are read in consonance, a uniform residual sense of a valid consent can be understood as consent by competent parties without any external influence.
ELEMENTS OF A VALID CONSENT
The consent may vary along with the context for which it is obtained like the consent to enter into a contract, consent to a medical procedure, or consent to a sexual act, etc. but the fundamentals to constitute valid consent remain constant, which a person who is competent to consent to understand its nature, stated as follows:
i)Free Consent: Consent free from external pressure, which may sway an individual’s own will, can be said to be valid. In a contractual sense, consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation, or mistake of fact in a given situation[[ii]]. According to the Indian Penal Code, consent is invalidated if it is given by a person under fear of injury or a misconception of fact[[iii]]. Both statutory provisions highlight the importance of free consent as essential to a valid consent.
ii)Concurrent minds: The above-stated provisions also signify the importance of the likeness of minds and for consent to be valid only to the extent to which it was understood by the parties in the same manner, as the mistake of fact is a ground to invalidate a consent. It becomes essential for a person to be aware of object material to which he/she is consenting in a manner where it is consonance with the context in hand i.e. same thing in the same sense.[[iv]]
iii)Age of Majority: The age of the consenting party plays a vital role in establishing their capacity to give valid consent and a minor is incapacitated to give valid consent. The Indian Majority Act declares that every person domiciled in India shall be deemed to have attained majority when he/she has completed 18 years of age[[v]] and when this is read with the Indian Contract Act, “Every person is competent to contract who is of the age of majority according to the law to which he is the subject, and who is of sound mind and is not disqualified from contracting by any law to which he is the subject” [[vi]], it can be established that any person who is below the age of 18 years is incompetent to give valid consent, at least in terms of making a contract. In a criminal act, a child below the age of 12 is ‘Doli incapax’ i.e. incapable of understanding the harm or consequences of an action, making him incompetent to give valid consent[[vii]]. The age to give consent concerning sexual activities is set at 18 years[[viii]].
iv)Soundness of mind: As per Sec. 12 of the Indian Contract Act “A person is said to be of sound mind to make a contract if, at the time he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interest”. From the said provision for a person to be competent to give valid consent must have the mental capacity to comprehend the nature and object of the consent, which is severely impaired due to Insanity or any such mental disorder which deteriorates a person’s capacity to give a consent having appropriate means to understand the nature of the act. In criminal law as well, consent of an 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 [[ix]] is not considered valid. The unsoundness can be permanent, like insanity, or temporary, like intoxication, in nature. But it must be noted that the mental state of a person at the time of giving consent is important to make it a valid one.
v)Barred by the law: Certain Indian statutes explicitly bar certain acts and any consent given with respect to illegitimate acts are considered void ab initio, hence invalid. For instance, a contractual agreement where both parties consented to an act that is forbidden by law is void[[x]]. Consent given to cause grievous hurt or death is not valid under criminal law[[xi]]. While consent is the expression of one’s free will to do or allow an act to be done, it does not overhaul the statutory laws that restrict the power to give consent to acts or objects prohibited by law.
COMPLEXITIES IN DETERMINATION
For consent to be valid, many nuanced elements are to be proved to determine the legitimacy of an act and it is at this step that complexities begin to arise starting with free consent which is free from coercion, undue influence, fraud, misrepresentation, and mistake. However, each factor is to be established only after a critical analysis of the circumstances and relation of the parties in a consenting act. As with the case of undue influence[[xii]], it is the relationship between the parties where one person is in such a dominant place that it can lead to him taking unfair advantage of the other person and they might give consent under the influence of subsisting relationship and the onus of proof lies on the one who is at the dominant position that no ‘undue’ influence has affected the consent of the other. There are a few other factors as well that add to the complexity of valid consent and they are mentioned hereunder:
i)Informed consent
Valid consent is not limited to just the know-how but includes all the relevant information regarding an act, this can be said as Informed consent. It plays a pivotal role in the medical profession where it is important to obtain consent before any medical or surgical procedures, informing the patient about the need and risks of a procedure so that the patient can consent to it while having all the relevant information about the procedure. It was first established in the landmark case of Samira Kohli vs. Dr. Prabha Manchanda & Anr.[[xiii]] that the patient has the right to make an informed decision in medical practice as they have full bodily autonomy. Where medical terms historically lacked clarity depending upon the medical professional’s ‘standard of care,’ now even medical procedures are described to the patient giving more importance to the patient’s will than the professional’s decision.
ii)Age as a Determinant
The age of consent is fixed with an assumption that anyone below that incompetent to give valid consent, especially in the case of the age of consent for sexual activity under the POCSO Act it assumed that anyone below the age of 18 years (before it was 16) is physiologically not prepared and is vulnerable to sexual assault. This assumption fails to stand as the ground rule to establish the competency as SC in S. Varadarajan[[xiv]] held that a minor is not incapable of thinking of herself in the case of kidnapping from unlawful guardianship. In the application of POCSO provisions, many consensual romantic relationships get criminalized, where mostly it is misused by the minor’s parents to bring the suit against the accused and the witness does not support it as it was consensual to begin with. It was observed that the ‘age of consent’ should be recalibrated to 16 by the legislature[[xv]] under this act. Thus, a fixed age bracket to determine the competence of a person to consent is not judicious, as children attain both psychological and physiological maturity much before the age of majority[[xvi]] and rather the concept of mental age should be used as the intellect and cognitive understanding is evolving and subjective in nature.
CONCLUSION
Differentiating literal consent and valid consent within the meaning of law can be ascertained once all the essential elements are present. But it does not end there as to capture the validity or acceptability of consent in its true nature there are several complex considerations in various contexts and it is only after that, that it can be said valid.
[i] India Const. art. 21.
[ii] Indian Contract Act, § 14 (1872)
[iii] Bharatiya Nyaya Sanhita, § 28 (2023)
[iv] Indian Contract Act, § 13 (1872)
[v] Indian Majority Act, § 3 (1875)
[vi] Indian Contract Act, § 11 (1872)
[vii] Bharatiya Nyaya Sanhita, § 28 (2023)
[viii] Protection of Children from Sexual Offences Act, § 3 (2012)
[ix] Bharatiya Nyaya Sanhita, § 28 (2023)
[x] Indian Contract Act, § 23 (1872)
[xi] Bharatiya Nyaya Sanhita, § 25 (2023)
[xii] Indian Contract Act, § 16 (1872)
[xiii] Samira Kohli v. Dr. Prabha Manchanda & Anr., (2008) 2 SCC 1
[xiv] S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942
[xv] Sabari v. State of T.N., 2019 SCC OnLine Mad 18850
[xvi] Preeti and Another v. State of Haryana and Others, 2020 (4) RCR (Criminal) 786
Leave a Reply