Consent and Its Evolution with Reference to Criminal Jurisprudence

Unravelling the Essence of Consent in Criminal Jurisprudence

Consent, an intricate and multifaceted concept, holds a paramount position in the realm of criminal jurisprudence. At its core, consent refers to the voluntary and informed agreement of an individual to engage in a particular act or allow others to act upon them. This article delves deep into the significance of consent in the context of criminal law and traces its evolution as a pivotal legal principle.

Consent, in the context of criminal jurisprudence, embodies the expression of an individual’s free will, devoid of coercion, manipulation, or deception, to permit a specific action that might otherwise constitute an offense.[1] The hallmark of consent is its voluntary nature, which empowers individuals to exercise control over their bodies, actions, and decisions. When validly given, consent serves as a potent defence against criminal liability, safeguarding individual autonomy while respecting their right to choose. The evolution of consent within criminal jurisprudence traces a rich historical journey, influenced by societal norms, cultural changes, and legal developments. Early legal systems often exhibited a rudimentary understanding of consent, focusing on explicit agreements or lack thereof. However, as societies progressed, the concept of consent evolved, encompassing elements such as capacity, informedness, and voluntariness. Medieval and early modern periods witnessed an emerging awareness of consent’s significance, particularly in cases involving bodily harm and property rights. The age of enlightenment and the subsequent development of legal principles emphasized the importance of consent as a fundamental pillar of individual rights. Notable jurists and legal philosophers, including John Locke and Jeremy Bentham, expounded on the necessity of consent as a prerequisite for any just and legitimate governance system.[2]

Empowering Justice: The Paramount Role of Consent in Criminal Law

Consent’s paramount role in criminal law lies in its capacity to differentiate between permissible and unlawful actions. By acknowledging an individual’s right to make autonomous choices, criminal justice systems can distinguish between consensual acts and coercive offenses, promoting fairness and proportionality in legal proceedings. Additionally, the presence or absence of valid consent plays a pivotal role in various criminal offenses, such as sexual assault, battery, and medical procedures.

The principle of consent also fosters a sense of trust in the legal system, reinforcing public confidence and upholding the legitimacy of legal decisions. Furthermore, recognizing consent as an affirmative defense ensures that individuals who willingly partake in certain activities are not unfairly subject to criminal prosecution, protecting them from undue harm and societal stigmatization. Consent’s multifaceted nature and its evolution as a central legal principle in criminal jurisprudence underscore its significance in safeguarding individual autonomy and promoting just legal outcomes. Acknowledging the historical context and nuances of consent aids in a comprehensive understanding of its role in modern legal systems. As society continues to evolve, the concept of consent will undoubtedly remain a fundamental cornerstone of criminal justice, continually adapting to meet the demands of justice, fairness, and individual rights.

Exploring the Enigma of Consent in Criminal Law: Intent, Context, and Burden of Proof

In the context of criminal law, consent is an active manifestation of the term ‘intention.’ It plays a pivotal role alongside actus reus and mens rea, essential components of any crime. Actus Reus denotes the physical act committed by the perpetrator, while mens rea signifies the intent to commit that act. A person will be held criminally accountable for actions done with the intention or knowledge of doing so, and with an awareness of the consequences they entail. Although the Indian Penal Code does not explicitly define consent, Section 90[3] elucidates what does not constitute consent. This section employs a negative approach, describing situations where permission is deemed invalid. It stipulates that consent given under duress, based on misunderstanding of facts, due to insanity, intoxication, or by a child under the age of 12 incapable of understanding the nature and consequences of the act, is not considered valid.

This judgement delivered in the case of Dashrath Paswan v. State[4] involved the defendant, who had faced consecutive failures in an examination and decided to end his life. After discussing his decision with his literate 19-year-old wife, she advised him to murder her first and then himself. Subsequently, the accused committed the murder of his wife but was apprehended before harming himself. The court held that the wife did not give consent under the fear of injury or misconception of fact, absolving the accused of the murder charge.

In general, the prosecution must prove its case against the accused beyond a reasonable doubt. Previously, prior to the enactment of the Indian Evidence Act 1882, the prosecution had to prove that the case did not fall under any exceptions. However, Section 105 of the Evidence Act[5] shifted the burden to the claimant, who must establish the presence of a general exception in the crime. While the term “consent” is not explicitly defined in the Indian Penal Code, it can be inferred to mean “to agree.” According to Kenny in “Outlines of Criminal Law,“[6] consent should be freely given by a sane and sober individual capable of making an informed judgment. Consent is recognized as an exemption under Sections 87[7] through 89[8] and Section 92 of the Indian Penal Code.[9] Furthermore, Section 90 emphasizes that genuine consent, untainted by intimidation, deception, or immaturity, is necessary to absolve a person of criminal culpability. Consent obtained through threats or violence is not considered genuine, as it is given “under threat of harm.”

Section 90[10] allows for both express and implied consent. Express consent is overtly communicated, while implied consent is inferred from actions and behaviour. For instance, a customer entering a store and handling displayed products implies permission to do so and potentially purchase them. The determination of whether consent was given is a factual matter to be presented as evidence during the trial. The defendant must establish the existence of consent or any of its exceptions, such as when it is given without their awareness, by mistake, or due to a prior implicit consent.

Tracing the Evolution of Consent: Landmark Judgments Shaping Criminal Jurisprudence

• Hoshan v. State of A.P. (2002): In this case,[11] the Court laid down an early approach to consent in criminal cases. It emphasized the significance of consent as a crucial element in determining criminal liability. The judgment underscored that the absence of genuine consent could render an act unlawful, even if the accused’s actions were voluntary.
• Dhanna Singh v. The State of Punjab (2014): In this landmark judgment,[12] the Court analysed the relevance of consent as a defence in specific criminal offenses. It clarified that consent could serve as a valid defence, but only under specific circumstances. The ruling established the principle that consent must be freely given and not obtained through coercion or deception to be considered valid in criminal cases.
• M. Malkani v. State of Maharashtra (1973): In this case,[13] the Court provided a comprehensive clarification on the parameters of valid consent in criminal cases. It emphasized that consent must be voluntary, informed, and unequivocal for it to serve as a legitimate defence. The judgment contributed significantly to refining the understanding of consent in criminal jurisprudence.
• State of Maharashtra v. Madhukar (1977): This judgment[14] reiterated the importance of genuine consent and its implications in criminal law. The Court highlighted that mere silence or passivity could not be construed as consent. The ruling reaffirmed the need for active and affirmative consent to establish its validity in criminal cases.
• State of Rajasthan v. Vinay Kumar (1996): In this landmark ruling,[15] the Court addressed consent in cases involving medical procedures and bodily harm. The judgment emphasized that consent for medical interventions must be obtained in a genuinely voluntary and informed manner. It established the right of individuals to make informed decisions regarding their bodies and medical treatment.
• State of Karnataka v. Krishnappa (2000): This judgment[16] delved into consent within the context of rape laws and sexual offenses. The Court emphasized that consent must be affirmative, unambiguous, and given without fear or coercion. The ruling played a pivotal role in shaping consent jurisprudence in cases of sexual violence.
• Prashant Bharti v. State of NCT of Delhi (2013): In this case,[17] the Court addressed consent in cases involving mental incapacity and vulnerability. The judgment emphasized the need for special protection and consideration for vulnerable individuals and those with mental disabilities, ensuring their consent is genuinely informed and voluntary.
• Hema v. State (2016): This judgment[18] presented a nuanced approach to consent in the context of intimate relationships. The Court emphasized the importance of mutual respect and communication within relationships, highlighting that consent can be withdrawn at any point.
• Justice K. S. Puttaswamy (Retd.) v. Union of India (2017): In this landmark judgment,[19] the Court recognized the right to privacy as a fundamental right, impacting the concept of consent significantly. The ruling highlighted the need for informed and autonomous consent in matters involving privacy and personal data.
• Independent Thought v. Union of India (2017): This landmark decision[20] addressed consent in the context of child marriages and protection of minors. The Court ruled that consent given by a minor in a child marriage is void, emphasizing the need to safeguard minors from forced and early marriages.
• Joseph Shine v. Union of India (2018): In this progressive judgment,[21] the Court addressed the issue of marital rape and consent within marital relationships. The ruling challenged the traditional exemption of marital rape and underscored the importance of spousal consent as genuine and voluntary.
• Common Cause v. Union of India (2020): This judgment[22] considered consent in the context of medical euthanasia and end-of-life decisions. The Court upheld the right to make decisions regarding one’s own life, including the right to withhold consent to medical treatment in specific circumstances.

Consent, a fundamental aspect of human autonomy, plays a crucial role in criminal jurisprudence. As societies progress and legal systems evolve, the concept of consent becomes increasingly intricate, touching upon issues of individual rights, power dynamics, and societal norms. Consent, within the ambit of criminal jurisprudence, is an intricate and evolving concept, intersecting with various aspects of human rights and justice. As society progresses, our understanding of consent and its application in legal contexts must continuously adapt to meet the challenges of a changing world.

[1] Williams, D.R., 2007. Misplaced Angst: Another Look at Consent-Search Jurisprudence. Ind. LJ, 82, p.69.

[2] Dunn, J., 1967. Consent in the political theory of John Locke. The Historical Journal, 10(2), pp.153-182.

[3] Indian Penal Code, 1860, § 90, Acts of Parliament, 1860 (India).

[4] Dashrath Paswan v. State AIR 1950 PAT 190.

[5] Indian Evidence Act, 1872, § 105, Acts of Parliament, 1872 (India).

[6] Kenny, C.S., 1926. Outlines of criminal law. University Press.

[7] Indian Penal Code, 1860, § 87, Acts of Parliament, 1860 (India).

[8] Indian Penal Code, 1860, § 89, Acts of Parliament, 1860 (India).

[9] Indian Penal Code, 1860, § 92, Acts of Parliament, 1860 (India).

[10] Indian Penal Code, 1860, § 90, Acts of Parliament, 1860 (India).

[11] Mohd. Hoshan v. State of A.P. (2002) 7 SCC 414.

[12] Dhanna Singh v. State of Punjab CRWP NO. 782 OF 2014.

[13] R.M. Malkani v. State of Maharashtra 1972 SCR (2) 471.

[14] State of Maharashtra v. Madhukar AIR 1991 SC 207.

[15] State of Rajasthan v. Vinay Kumar CRL. APPEAL NO. 1887 OF 2008.

[16] State of Karnataka v. Krishnappa 2000 2 SCR 761.

[17] Prashant Bharti v. State of NCT of Delhi (2013) 9 SCC 293.

[18] V. Hema v. State 1 CRL. APPEAL NO. 31 OF 2013.

[19] Justice K.S. Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1.

[20] Independent Thought v. Union of India W.P. (C) 382/2013.

[21] Joseph Shine v. Union of India W.P. (CRL) NO. 194 OF 2017.

[22] Common Case v. Union of India W.P. (C) NO. 215 OF 2005.