Consent for Harm – General Exception under IPC

[leaglesamiksha]

Sec 91 of the Indian Penal Code, 1860 carves out an exception to the rules mentioned under Secs 87 to 89. Secs 87 to 89 talk about instances where harm caused to a person with their consent, for their benefit, and by their guardian or the guardian’s consent, does not constitute an offence. Sec 91 states, “The exceptions in sections 87, 88 and 89 do not extend to acts 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.”
Ques: Which all acts may fall under the ambit of this Section?

Topic

[Intern]

Section 91 of IPC is a proviso to Sections 87, 88 and 89. Sections 87, 88, 89 categorically mention that consent will only condone the act causing harm to the person giving the consent, which will otherwise be an offence. Acts which are offences independently of any harm which they may cause will not be covered by consent given under Sections 87, 88 and 89. Such acts can be: causing miscarriage, public nuisance, offences against public safety, morals etc.
If one considers the example of causing a miscarriage, then it is not only an injury to the woman alone, but an offence against the life of the child as well. Ergo, the mother’s consent will not be considered as the consent of the child and the person causing a miscarriage will not be absolved from prosecution by claiming consent as a general defence. Consent can be given to condone a harm caused to the person concerned, but not an injury caused to someone else, who never consented to it, (Ademma, (1886) ILR 9 Mad 369) consent will not condone a man from criminal prosecution in respect of offences against the State, public health, safety, convenience, decency, morality and the like. Thus obscene publications, indecent exhibition and public nuisance, etc., all such acts are acts which can come under the ambit of Section 91.

[Intern]

Chapter four of Indian Penal Code provides the general exceptions to the crime which are based on the absence of guilty mind i.e. Mens Rea. General exceptions are divided into 2 types:-
• Excusable Defenses
• Justified Defenses

The word consent is not defined in the code but its general meaning is to agree for something. Consent should be given freely and Indian Penal code proves it as an exception. It is a justified defense which is governed under Sec 87, 89 & 92 of the Code. Volenti Non Fit Injuria is closely related to concept of implied consent. There are two types of consent:-
• Express Consent
• Implied Consent.
In other words, a person who has committed an offence may escape from liability due to the application of general exceptions. The burden to prove all the elements of a crime and establish the guilt of accused never shifts from the prosecution. Section 90 of the code defines consent in a negative manner and provides for what does not amount to consent. Section 87 is based on the concept that every person is the best judge for himself and that’s why he will not consent to something which will hurt him. But as a whole the immunity under this exception is not extended to offence of murder and an act against the state. The defense of consent is available where the victim consents to activity occurring. Consent is not valid where it is given under fear or injury or by intoxicated person.
Therefore, as a whole consent can be considered as a general exception to the code but it is not extended to murder

[Intern]

In IPC sections 87- 94 comprises the consent and compulsion in any crime. It discusses the extent of independence of making consensus, in what manner, by whom and involvement of a third party providing consent on someone else’s behalf.
sec.87- i> absence of mens rea
ii> Absence of knowledge of death or grievous hurt but knowledge of risk is present.
iii> consent should be from a major.
iv> consent can be either expressed or implied
sec.90- what is NOT a consent?
i> anything done out of fear of injury(mental or physical)
ii> under misconception of fact
iii> the person to whom it is given, knows or has the reason to believe that the consent was given under fear or
misconception.
iv> any consent given by an insane person.
sec.88- i> consent( subjected to provision of sec.90)
ii> absence of mens rea
iii> knowledge of death or grievous hurt is present
iv> intension of grievous hurt is present but not that of death.
sec.89- i> minor less than 12 years of age.
ii> consent is given by parents or guardian
iii>in good faith
iv>for benefit of the child
v> knowledge of death or grievous hurt is present
vi> intension of grievous hurt is present but not that of death.
sec.92- i> consent is given by a third person
ii>in good faith
iii>for benefit of the person
iv> knowledge of death or grievous hurt is present
v> intension of grievous hurt is present but not that of death.

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