CONSENT AND GOOD FAITH

This article is written by Janvi Goyal, an intern under Legal Vidhiya

ABSTRACT

In Indian law, consent and good faith serve as essential elements that shape the legal climate in a variety of fields. In the context of Indian law, this article explores the intricate connections between consent and good faith, outlining their importance, applications, difficulties, and methods of enforcement. This article offers a thorough analysis of how these principles protect individual rights, grow justice, and uphold ethical standards in legal transactions and interactions. It does this by examining the concept of consent in contracts, criminal law, and healthcare, as well as the principles of good faith in commercial dealings and fiduciary duties. This essay accentuates the crucial role that consent and good faith play in promoting trust, accountability, and equal outcomes in Indian society by looking at important statutes, court decisions, and current issues.

Two key concepts in criminal law, consent and good faith, are covered in a number of provisions found in the Indian Penal Code (IPC) of 1860. A person’s free will to participate in a certain act or transaction is referred to as consent, whilst an individual acting in good faith has genuine goals or beliefs free from deceptive or malevolent purpose. These ideas are essential to the Indian Penal Code since they determine the legality and accountability of various acts.

KEYWORDS

Consent, good faith, law, criminal, justice

INTRODUCTION

In Indian law, the fundamental concepts of consent and good faith govern interactions and transactions in a range of legal circumstances. Justice and integrity in the legal system depend on consent, which is defined as voluntary agreement or permission, and good faith, which is described as honesty, fairness, and integrity. In this article, we explore the concept, significance, and application of consent and good faith in Indian law, analysing their implications across contracts, criminal^[1] offenses, healthcare, commercial dealings, and fiduciary relationships. By elucidating the legal framework, challenges, and enforcement mechanisms related to consent and good faith, this article aims to provide a comprehensive understanding of their role in upholding individual rights, promoting ethical conduct, and ensuring equitable outcomes.

The Indian Penal legislation (IPC) of 1860, the main criminal statute governing offenses in India, is based on the fundamental concepts of consent and good faith. The legality, guilt, and moral responsibility of people’s activities are all determined by the combination of these two ideas.

As per the definition provided by the Indian Penal Code, consent is the freely given authorization to participate in a certain act or transaction. It is fundamental to many legal situations, such as those involving contracts, healthcare, sex, and other relationships. In particular, Section 90 of the IPC discusses consent, emphasizing its importance and defining scenarios in which consent can be ruled void. These include situations in which authorization is obtained by deception, fraud, or coercion, or in which the person who consents lacks the necessary competence. The Indian Penal Code outlines the parameters for valid consent and underscores the significance of obtaining consent deliberately and free from coercion.

Good Faith: The term “good faith” describes an individual’s sincere intention or belief in the absence of any malevolent or dishonest motive. In some situations, it acts as a shield from responsibility for crimes. The principles of acting in good faith are explained in Sections 52 to 60 of the IPC, which also lists circumstances in which people may be shielded from prosecution even if their activities have unanticipated consequences or harm. The IPC, however, also outlines the constraints of this defense, emphasizing that good faith does not release individuals from legal responsibility in cases when their conduct constitutes carelessness, recklessness, or disobedience of the law.

In conclusion, the inclusion of consent and good faith in the Indian Penal Code highlights the significance of it. These ideas serve as the foundation for determining the moral rectitude of people’s intentions and the voluntariness of acts, which helps ensure that the criminal justice system operates in a fair and just manner.

OBJECTIVE

The objective of this research paper is to explore the concept of consent and good faith in Indian Penal Code, 1860. It focuses on understanding of provisions of consent and good faith with illustrations, case laws and its judicial interpretation.

DEFINITIONS

Consent

 The manifestation of autonomy and free choice by capable, reasonable people who are not subject to force or compulsion is referred to as consent in classical liberal thought. Sections 87–91 of the Indian Penal Code, 1860 contain this provision. To agree to do something is what it means. According to sections 87, 88, and 89, it indicates that the victim granted permission for the harm to happen, that the act was done for the victim’s benefit, or that a guardian gave permission to assume the risk on behalf of a child. It happens when there may have been a criminal conduct committed but the crime itself is not lethal. If the victim gives their consent for the activity to take place, they may use the defence of consent. Belief, consideration, and awareness^[2] of the intended danger are all components of consent.

 Consent is not valid whenever:

• Under duress, physical harm, or misrepresentation of the truth, consent is void.
• The party giving consent is aware or has good reason to suspect that they are acting out of fear, hurt, or misinformation.
• It is delivered by a drunk person.
• It is provided by an insane individual.
• It is provided by someone younger than 12 who lacks the maturity to comprehend the repercussions.

Essential elements of consent:

• The party who was harmed is the one who benefits from the action.
• The person who is going to be hurt must provide permission for the act to take place.
• The harmful conduct must be carried out in good faith with that person’s best interests in mind.
• The deed must be performed with no desire to cause death. But the doer is not responsible if the harm causes one to pass away.

Good Faith

Acts performed in good faith for one’s own or others’ benefit are protected under Section 52 of the Indian Penal Code, 1860. It says that a deed carried out in good sincerity is not illegal, even if it causes harm. Good faith is a relative term that hinges on an individual’s sincere convictions and desire to behave in their own or others’ best interests. In general, operating in good faith is not intending to mislead or defraud somebody. Although good faith is not defined specifically in the Indian Penal Code, it is covered by rules pertaining to actions taken for the benefit of another person and in good faith.

 Fundamentals:

• Reason and logic; a sincere desire combined with;
• With diligence or prudence;
• and Using knowledge or proficiency.
• are essential factors in identifying the action completed.

Exception:

• Good Intention and
• Due care and intention

Section 87 of Indian Penal Code, 1860:

Consent Act not intended and not known, to be likely to cause death or grievous hurt, done by consent:

Nothing that does not mean to cause death or severe harm, or that the perpetrator does not know is likely to cause death or severe harm, will be deemed unlawful due to any potential harm it may do or that the perpetrator has the intent to contribute to any persons over the age of eighteen who have provided their express or implied consent to suffer that damage; or because the doer knows that any such person who has given their consent to assume the risk of that harm will likely suffer harm.

Illustration:

For entertainment, “A” and “Z” decide to square off. This agreement implies that both parties undertake to bear all consequences that may arise from fair play throughout the fencing; also, if “A” injures “Z” while playing fairly A doesn’t do anything wrong.

This section is based on the Roman legal adage “Volenti non fit injuria,” which states that a person who gives his assent to an act is not entitled to compensation for any harm the conduct causes him. Even if this idea is applicable in civil matters, Section 87 of the penal code also adopts it.

Ingredients:

–       Harm is Caused to any Person with his Content^[3].

–       If act is done neither with the intention of causing death or grievous.

–       hurt nor the knowledge that it is likely to cause death or grievous hurt.

–       Person giving consent is above 18 years of age.

–       Consent Given may be Expressed or Implied

 Case Laws

Tunda vs Rex AIR 1950 All 95(UP)

The dead and the accused were friends who engaged in a playful wrestling contest that resulted in the deceased suffering major injuries to his cranium and departed. Because the accused did not intentionally harm the deceased, the court determined that there was no foul play. As a result, the accused was not found guilty of any crime and was granted protection under Section 87 of the Indian Penal Code.

In Poonam Fatteman Vs Emperor (1869) 12 WR (Cr) 7

The dead was tricked into thinking that the accused,^[4] a snake charmer, had the ability to shield him from any injury caused by a snakebite. Because he thought it was real, the dead consented to be bitten by a snake, he passed away. The accused was found guilty of culpable homicide under Section 304 IPC by the court, rejecting his plea of consent.

In Bishambhar vs Roomla AIR 1951 All 500

After the complainant sexually assaulted a Harijan girl, 200 or so locals gathered to beat him. However, the issue was brought before a self-constituted panchayat thanks to the intervention of three local elders. The panchayat ruled that after giving the complaint a shoe flogging, his face should be blackened and he should be paraded through the hamlet. The written permission of the complainant was to unconditionally accept the panchayat’s verdict. In response to criminal charges brought against the panchayat members, the court ruled that the accused (the panchayat) had acted lawfully and without malice in order to protect the complainant from serious consequences (many harijans had assembled with weapons to exact revenge on the compliance), with the complainant’s written consent.

Section 88: Good Faith of Indian Penal Code, 1860

Act not intended to cause death, done by consent in good faith for person’s benefit:

 Anything that isn’t meant to be fatal is not illegal because it can harm someone, or the person who does it knows it will harm someone, and it’s done for their benefit in good faith. This includes anyone who has given their express or implicit consent to suffer the harm or take the risk of harm.

Illustration:

“A,” a surgeon, performs an operation on “Z” with an awareness that it is likely to result in death. Z has a terrible complaint, but “A” does not plan to kill Z; rather, he acts in good faith to benefit Z. Z’s approval “A” hasn’t done a thing wrong.

Consent is invariably insufficient to make up the willful causation of death. However, even though death is probably not going to occur even though the act’s doer never intended for it to, the person whose benefit the act is performed for may provide authorization for another to perform it. For example, when a patient gives permission to have surgery for a medical issue that, in the majority of cases, has proven fatal, and the surgeon then carries out the operation and the patient passes away, the surgeon is immune from liability because of this section’s safeguards.

In the same way, suppose a person is attacked by a wild animal, calls for assistance, and asks a friend who is nearby to shoot the animal to scare it away. The pal complies even though he knows that shooting the friend could kill him, person is in danger, he is protected by Section 88 since the gunfire was used in good faith to protect the friend who was in danger of being killed by the wild beast.

Ingredients:

• The person ^[5]who is injured is the beneficiary of the act.
• Such an act is carried out with the person’s verbal or implicit permission to suffer that injury or to assume that risk of harm.
• The deed is performed with honesty. Any action that results in harm or injury must be carried out with good faith; that is, it cannot be carried out carelessly. This part calls for proper care and attention rather than specialised training or expertise. The definition of “good faith” is given in Section 52 of the IPC.
• The act is performed with no intent of causing death, even though it may have been committed with the aim of causing harm that could cause death.

 Case Laws

G.B. Bhatge Vs Emperor AIR 1949 Bom. 226

A fifteen-year-old child who had behaved inappropriately was disciplined by the teacher, who gave him five or six canings. He had acted in good faith to safeguard the youngster and protect school discipline, hence he was found not guilty of infringing Section 323 (causing, voluntary harm). Section 88 of the IPC provided protection for the teacher’s act. However, the teacher’s actions would have been protected by Section 87 of the IPC if the youngster had been older than 18.

Sukaroo Kaviraj Vs Emperor (1887) 14 Cal 566

With the patient’s approval, an unlicensed medical professional in this case operated on him for internal piles with a regular knife. As a result, the patient passed away, the practitioner lost his protection under Section 88, and he was found guilty of culpable homicide that did not qualify as murder. The accused was not protected by this provision, the court decided, because it could not be claimed that his actions were done in good faith.

Doraswami Pillai v. The King-Emperor on 3 March,1903

In this instance, the police constable went to the accused’s residence at midnight with another constable because of his suspicious actions, and they knocked on his door to make sure he was home.

Although the complainant was not given consent to enter and observe the accused’s movements or his appearance in the house or knock on his door at midnight in order to pester and disturb him, the constable^[6] nonetheless wanted to keep an eye on him.

Any police constable intending to access the property to track the whereabouts or presence of a person they suspect needs a public order from the corresponding magistrate.

Even after receiving the public order, it should be performed legally; neither trespassing onto his property nor using any other illegal methods should be used in this context.

After the complainant arrived on the accused’s door, it turned out that he had assaulted and abused him. He had also brought a stick and lifted it to frighten the complainant.

Unless the accused can demonstrate that the acts they performed were a private defence of their property, they will be found guilty of the attack they committed.

The police constable was found to be liable for house trespass under Section 442 of the Indian Penal Code because the police’s conduct was deemed unsuitable and offensive to the accused. The accused was found to have had his actions justified under Section 104, which cleared him of all charges. In addition, the police constable was not given a defence under Section 52 for acting in good faith.

CONCLUSION

In conclusion, the Indian Penal Code (IPC) of 1860’s guidelines for consent and good faith serve as crucial bedrock for the administration of justice and the control of one’s private conduct inside India’s legal system.

The Indian Penal Code recognized the critical role that legitimate consent plays in a number of human interaction domains, from contracts to individual liberty about things like medical attention and sex. The Indian Penal Code (IPC) aims to protect people’s rights and guarantee that activities are performed freely and voluntarily by outlining situations in which permission may be deemed invalid, such as when gained by pressure, fraud, or deception.

In a similar vein, the idea of good faith offers people operating in good faith and without malice an essential buffer against unjustified criminal culpability. The IPC’s Sections 52 to 60 provide criteria for assessing when acts performed in good faith may shield a person from prosecution, underscoring the significance of genuine conviction and adherence to legal behavior.

Consent and good faith, however, have their limitations even though they provide substantial legal defenses and considerations. The IPC lays out precise recommendations, stating that approval gained illegally or by careless behavior is not acceptable. Similarly, person acting in good faith does not release them from responsibility if their actions are the consequence of negligence or adherence to the law.

The Indian Penal Code’s consent and good faith provisions primarily seek to strike a balance between the rights of the person and the interests of society, fostering justice, honesty, and accountability in the implementation of the law. The Indian Penal Code aims to promote a legal system that safeguards and upholds the rights and dignity of every person by adhering to these principles.

For the sake of preserving justice and equity in the criminal justice system, the Indian Penal Code’s prerequisites on consent and good faith are essential. These clauses allow for exemptions based on actual consensual operations or acts done in good faith, acknowledging the value of individual agency and intention. To avoid abuse and guarantee accountability for illegal activity, these regulations must be enforced and construed correctly. The core elements of contract law that influence the legality and enforceability of contractual agreements are consent and good faith. This research paper explored the meaning, elements, illustrations  and relevant sections of Indian Penal Code with related case laws.

REFERENCES

• https://ugcmoocs.inflibnet.ac.in/assets/uploads/1/203/6662/et/L10%20-%20Text200314111103033838.pdf
• PROVISIONS OF MISTAKE, CONSENT, AND GOOD FAITH UNDER THE INDIAN PENAL CODE – Legal Vidhiya
• Law On Consent And Confidentiality In India (legalserviceindia.com)
• Interpretation of the concept of good faith under Indian Penal Code (ipleaders.in)
• https://www.writinglaw.com/consent-as-general-exception-ipc/#:~:text=The%20essential%20elements%20of%20section%2088%20of%20IPC,good%20faith%20for%20the%20benefit%20of%20that%20person.
• https://blog.ipleaders.in/interpretation-good-faith-ipc-2/#:~:text=According%20to%20IPC%2C%20good%20faith%20requires%20due%20care,upon%20the%20facts%20and%20circumstances%20of%20the%20case.

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^[1] P.B. Gajendragadkar, The Constitution of Inda.op,cit.13-14/40-412

^[2] 2 V.D.Mahajan, Constitutional law of India p.232-241.

^[3] Commissioner of H.R.E. v. Lakshmindra, A.I.R. 1954. S.C. 282 at 290.

^[4] Constitutional Assembly Vol,7,p.781

^[5] Madras Hindu Religious and Charitable Endowment Act, 1951 (Madras Act 19 of 1951)

^[6] V.P. Luthera, op.cit. p. 129.

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