Consent Section 87

Consent Section 87-91
Introduction
Under criminal law, the term consent is an active expression of ‘intention’. The
crime has two essential ingredients (1) actus rea and (2) mens rea. Actus means
an act done by the wrongdoer, whereas mens rea means the intention of doing
that particular act. A person will be criminally liable for all the acts that he had
done with the intention or knowledge of doing it and possibly know the
consequences of his acts.
We will discuss how a doer is protected from criminal liability when he causes or
takes the risk of injury with or without the consent of the person harmed.
Meaning of consent
In common parlance, consent is an act done deliberately and by free will. It
involves a deliberate exercise of intelligence based on knowledge of the
significance and moral effect of the act. It consists of three things- a physical
power, mental power and free use of them.
However, the word ‘consent’ is nowhere defined in IPC. But Section 90 of IPC
talks about what does not amount to consent. It describes consent in a negative
term. It states, a consent given by a person under the fear of injury, or under a
misconception of facts, or by reason of unsoundness of mind, intoxication, or a
child under the age of 12 years (unless the contrary appears from the context),
who is incapable to understand the nature and consequences of the consented
act, is no consent.
Consent as a defence
Section 90 of the IPC, though does not define ‘consent’, yet lays down what is
not consent. It regulates the operations of Sections 87, 88 and 89 of the I.P.C.
There are four cases where a consent given by a person is no consent.
First: Person giving consent under the fear of injury– Under criminal law, consent
obtained by threat and violence would not be a defence. For example, Z
threatened A with a knife to sign his property paper in favour of X, Z’s son. Here
the consent was given under fear of injury.
Second: Person giving consent under the misconception of facts– if consent is
obtained under a misconception of facts, then it will have no value in the eyes of
law. For example, a woman had a consent sexual intercourse with a doctor on
the belief that he was making a medical examination of her. The doctor would be
held guilty as he made her believe that he was doing a medical examination of
her.
Third: Consent given by insane people– People who are of unsound mind, or in
an intoxicated state of mind, incapable to understand the nature and
consequences of their acts. For example, A, in a heavily drunken state, signed his
property paper in favour of the liquor shop owner just to get one more liquor
bottle. In the eyes of the law, his consent has no value.
Fourth: Consent given by child- The last para of section 90 says consent given
by a child under the age of 12 years has no value in the eyes of law. In this case,
the consent will be given by the child’s guardians or person in charge of him.
Conditions needed to plead consent as a defence

Section 87, 88, 89 and 90 of the Code deals with various conditions which are
needed to plead consent as a defence. These are mentioned below:
1. Person has consented for the risk.

2. The person must be above the age of 12 years unless the contrary
appears from the context and must not be of unsound mind, if yes then
the consent must be given by guardians or the person in charge of them
on their behalf.
3. Consent be given under no fear or misconception of facts.
4. The said consent must be made expressly or impliedly.
5. The consent was not intended to cause death or grievous hurt.
Express and Implied Consent

Both express and implied consent are recognized under the Section. As long as
there is consent and it was freely given, the number of words or specific
articulation of the said consent is not necessary.
The term ‘express consent’ as far as criminal law is concerned is used to give
permission for something either verbally or in writing. When your friend asked
you to rent your flat for a day and you said ‘Yes’. Then, it is your express consent
given verbally to him.
X, had an operation of his backbone. But before the operation, the doctor told
him to sign a paper in which it was expressly mentioned that operation might
cause his death. X signed the paper as he had an unbearable pain. X died. The
doctor will not be liable.
The term ‘implied consent’ in criminal law is used to obtain either (1) consent by
acts and conducts, or (2) consent presumed. When a person enters a Big Bazaar
store and picks up goods that were exhibited for sale, then it can be presumed
that there is an implied consent to enter into the shop, to handle goods and to
purchase them also. This is an example of consent by acts and conducts.
X, on being friendly terms with Z, goes into his wardrobe in his absence and takes
away his shirt without Z’s express consent for the purpose of attending a party
tonight, and the intention of returning it. X has not committed the offence of theft
as he had an impression of Z‘s implied consent though Z has never given or in
any way signified the same. It was presumed consent.
Scope of Section 89 of IPC

Section 89 of IPC deals with children below 12 years of age and persons of
unsound mind and hence, they do not have the legal capacity to give consent as
they are incapable of understanding the nature and consequence of their act.
Hence, the consent on their behalf is given by guardians or persons legally in
charge of them.
The doer must act in good faith and for the benefit of the person harmed.
When the benefit under Section 89 cannot be

claimed
The following four provisos have been laid down by the legislature to make sure
some additional safeguards other than the fact that the doer should act in ‘good
faith’:
1. Act shall not extend to intentional causing of death, an attempt to cause

death. For instance, A in good faith intentionally kills his son, who is
suffering from incurable heart disease just to give him a peaceful death.
A would not be protected under this section.
2. This provision will not apply in the situations wherein the person was
aware or had a knowledge of his act which is likely to cause death unless
it was done for the prevention of death or grievous hurt, or the curing
of any grievous disease or infirmity. For instance, A in good faith, for his
daughter’s benefit without her consent, has consented for
transplantation, knowing it to be likely to cause death in the process,
but not intended to cause her death. A will be given the defence of
section 89, since his objective was to cure her daughter.
3. This provision will not apply in the situations wherein the person
voluntarily causes grievous hurt or attempted to cause grievous hurt
unless it was done for prevention of death or grievous hurt, or the curing
of any grievous disease or infirmity. For instance, A in good faith, for his
child’s pecuniary benefit, emasculates him. Here A would not be
protected under this provision as A has caused grievous hurt to his child
for a purpose, other than preventing death or grievous hurt.
4. This provision will not extend to the abetment of any offence, which is
not covered under this provision. For instance, A, in good faith, abets B,
his friend, to sleep with his daughter Y, who is under 12 years of age for
pecuniary benefits. Neither A nor B would be given protection under this
section.
Landmark Judgments
Sukaroo Kaviraj v. The Empress (1887)

In this case, Mr. Kaviraj, a qualified doctor performed an operation of internal
piles by cutting the vital part with an ordinary knife. The patient died because of
copious bleeding. He was prosecuted for causing death by rash and negligent act.
The Court held him liable as he did not act in good faith.
Conclusion
From the above discussion, we understand why a doer is protected from criminal
liability when he causes or takes the risk of injury with or without the consent of
the sufferer as he acted in good faith and for the benefit of the person harmed.
But in case of serious bodily injuries, criminal law does not recognise consent as
a defence. For example, a player consented for a certain degree of injuries in a
football match but if s/he received more than that in the normal conduct of the
game, then it is unlawful.

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Consent Section 87-91

Conditions needed to plead consent as a defence

1. Person has consented for the risk.

Express and Implied Consent

Scope of Section 89 of IPC

When the benefit under Section 89 cannot be

1. Act shall not extend to intentional causing of death, an attempt to cause

Sukaroo Kaviraj v. The Empress (1887)

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