THE JURISPRUDENCE OF CONSENT TO BODILY HARM: A STUDY OF BDSM, BODILY AUTONOMY, AND CRIMINAL LIABILITY IN INDIAN LAW

Section 87 of the old Indian Penal Code survives, almost word for word, as Section 25 of the Bharatiya Nyaya Sanhita. An adult may consent to be harmed, the provision says, but only up to a point, the moment death or grievous hurt enters the picture, consent stops mattering. The draftsmen who settled on this boundary in 1860 had no occasion to consider a private, negotiated arrangement between two consenting adults built around pain, restraint, and an agreed mechanism for withdrawal, and yet that is precisely the population the rule now governs, more or less by accident. This paper is about what happens to BDSM practitioners caught in that accident. No Indian court has ever had to decide whether a bruise that was asked for, negotiated for, and recovered from with aftercare counts as the same thing as a bruise inflicted in anger, the question has simply never come up, which is a different thing from saying it has been resolved. Meanwhile the Supreme Court has spent the better part of a decade building a fairly expansive account of what Article 21 protects: in Puttaswamy, the body and its choices; in Navtej Johar, the right to decide, without the state's permission, how intimacy is conducted between consenting adults. The criminal law's consent provisions have not caught up to either judgment, and this paper tries to work out what it would mean if they did. It draws on Mill's harm principle and the older Hart-Devlin argument about how far the law may go in policing private morality, on Feinberg's distinction between paternalism (illegitimate) and verifying that consent was actually free (legitimate), and on the House of Lords' uneasy and much-criticised decision in R v Brown, where consent to sadomasochistic harm was rejected as a defence on grounds that have not aged especially well. The paper is not interested in pretending that consent solves everything, Brown's underlying worry, that consent can be performed rather than genuinely given inside an unequal relationship, is a real one and gets taken seriously here. What the paper argues instead is narrower: that severity of injury is the wrong thing for the law to be measuring, and that voluntariness, capacity, and the ability to withdraw at any point are the right things, and that Indian courts already have, in cases as old as Tunda v. Rex, the doctrinal materials needed to make that shift without waiting for Parliament to rewrite the BNS.