INTRODUCTION
There is a famous Latin maxim that law students learn early on: Qui tacet consentire videtur– “he who is silent appears to consent.” The principle, however, is far from absolute.
However, the reality is much more complicated. Whether silence amounts to consent depends on the area of law, the relationship between the parties and the surrounding circumstances. Indian law does not adopt a single rule for all situations. Instead, it approaches silence differently in contract law, criminal law and consumer protection law.
CONTRACT LAW: SILENCE IS USUALLY NOT ACCEPTANCE
Under Indian Contract law, the general rule is straightforward: silence does not amount to acceptance.
Section 2(b) of the Indian Contract Act, 1872, defines acceptance as when “the person to whom the proposal is made signifies his assent thereto”.[1] The word ‘signifies’ requires an outward communication of assent through words, writing or conduct.
This principle was clearly applied in Bank of India Ltd v Rustom Fakirji Cowasjee (1955). An airline company had written to the bank claiming that certain assets were hypothecated against its account and asked the bank to confirm. The bank said nothing. The defendant argued that by remaining silent, the bank had assented to the arrangement. The Bombay High Court firmly rejected this. Justice Desai held that mere silence cannot amount to any assent- it does not constitute a representation on which estoppel can be founded- unless there is an existing duty to speak or to do some act. The bank owed no such duty, and its silence was legally irrelevant.[2]
Similarly, in Bhagwandas Goverdhandas Kedia v Girdharilal Parshottamdas & Co (1966), the Supreme Court held that acceptance must be communicated to and received by the offeror. Acceptance cannot remain in the mind of the offeree; it must reach the other party.[3] The Court emphasised that acceptance must be communicated and cannot remain a private intention.
However, there are situations where silence may have legal consequences. Section 17 of the Indian Contract Act recognises that silence can amount to fraud where there is a duty to speak. If a party suppresses material facts and that suppression induces the other to contract, the silence is treated as an act of deception, making the contract voidable.[4]
CRIMINAL LAW AND SEXUAL CONSENT: SILENCE IS NOT CONSENT
The issue becomes far more serious in criminal law, particularly in cases involving sexual consent.
The position is most clearly illustrated by Tukaram v State of Maharashtra (1979), commonly known as the Mathura rape case. A young tribal girl alleged that she was raped by two policemen inside a police station. While the Bombay High Court held that passive submission induced by fear is not consent, the Supreme Court restored the acquittal, relying on the absence of injuries and resistance to infer consent.[5]
The judgement attracted nationwide criticism. In an open letter, Professors Upendra Baxi, Ragunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar wrote: “Consent involves submission, but the converse is not necessarily true….From the facts of the case, all that is established is submission and not consent”.[6]
The resulting public outrage led to the Criminal Law Amendment Act,1983 which amended Section 379 of the Indian Penal Code in response to Tukaram. It introduced specific provisions for custodial rape and shifted the burden of proof in certain cases.[7]
The Criminal Law Amendment Act, 2013 further amended Section 375 of the IPC (now replaced by Section 63 of the Bhartiya Nyaya Sanhita,2023), consent is defined as an “unequivocal voluntary agreement when the woman by words, gestures or any other form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”.[8]
Modern Indian criminal law therefore rejects the idea that silence or passivity can automatically be treated as consent.
CONSUMER PROTECTION: SILENCE AND UNFAIR TERMS
Consumer law presents another important context. Businesses have often involved standard form contracts with buried or undisclosed terms where a consumer’s failure to act is treated as agreement to ongoing charges or conditions.
Section 2(47) of Consumer Protection Act, 2019 defines “unfair trade practices” to include practises involving misleading representations and deceptive methods. The right under Section 2(9)(ii) to be informed about the quality, quantity and price of goods is a positive right- it exists whether or not the consumer asks.[9]
Consumer forums have also been unwilling to enforce unfair clauses merely because consumers did not challenge them. In Sehgal School of Competition v Dalbir Singh, the National Disputes Redressal Commission held that a non-refundable fee policy was an unfair trade practice, notwithstanding the fact that the complainant had not expressly challenged it at the time of admission. A consumer’s silence when confronted with a pre-printed, non-negotiable clause does not represent genuine consent.[10]
The underlying principle is that silence does not necessarily amount to genuine consent, especially where there is a clear imbalance of bargaining power.
WHEN CAN SILENCE AMOUNT TO CONSENT?
Although silence is generally insufficient, Indian law recognises certain exceptions.
- Duty to speak
Section 17 of the Indian Contract Act provides the clearest example: silence is fraudulent where a party has a duty to disclose material facts and chooses to remain quiet. The Act’s own illustration makes the point emphatically- if one party invites the other to treat silence as affirmation, and the silent party stays quiet, that silence is equivalent to speech.[11] This is particularly relevant in cases involving fraud, fiduciary relationships and insurance contracts.
- Prior course of dealing
Where parties have previously conducted business in a particular way- where silence has, in practice, operated as acceptance- the courts may hold that a contract was formed even without explicit acceptance.
- Acceptance by conduct
A person may accept an offer through conduct rather than words. Accepting goods, making payments, proceeding with delivery- can constitute acceptance even in the absence of formal communication.
- Procedural defects
Under the Code of Civil Procedure, 1908. A defendant who fails to file a written statement within the prescribed period (30 days, extendable to 90 days) may face consequences that treat their silence as an admission of the claim[12]. Although this is not true consent, the law sometimes gives procedural silence legal effect.
HOW INDIAN COURTS APPROACH THE ISSUE
When we examine these different areas of law together, a clear pattern emerges. Indian courts rarely ask whether silence equals consent in the abstract. Instead, they examine the context and ask whether genuine, informed and voluntary agreement existed.
Courts focus not on silence in isolation but on whether the circumstances demonstrate genuine, informed and voluntary agreement. While Bank of India and Bhagwandas Kedia reinforce the requirement of communicated acceptance in contract law, the legislative response to Tukaram reflects the rejection of implied consent in criminal law. The common thread is that legal consequences flow from context rather than from silence itself.
The constitution also plays an important role. Article 21 protects life, dignity and personal liberty[13]. In State of Karnataka v Krishnappa (2000), the Supreme Court held that sexual violence is not merely a physical assault but an act of degradation and humiliation that violates the victim’s right to life under Article 21.[14] This constitutional understanding adds weight to the argument that consent in criminal law cannot be inferred from silence or passivity- it must be affirmatively present, because the alternative is a violation of fundamental rights.
CONCLUSION
Whether silence amounts to consent us not answered by a single rule in Indian law. Instead, the legal position depends on the context in which silence occurs and the nature of the relationship between parties. Contract law generally requires a clear communication of acceptance. Consumer law similarly recognises that silence, particularly in standard-form contracts, cannot automatically be treated as informed consent. Criminal law adopts the stronger position insisting that consent to sexual activity must be an affirmative and voluntary expression of willingness.
Across these different branches of law, one principle remains constant: the law values real, informed and voluntary agreement over assumptions based on inaction. Silence may sometimes produce legal consequences, but those consequences arise because of the surrounding circumstances- not because silence itself is treated as consent.
Author(s) Name: Ishika Garg (Maharishi Markandeshwar (deemed to be) University)
References:
[1] Indian Contract Act 1872, s 2(b)
[2] Bank of India Ltd v Rustom Fakirji Cowasjee AIR 1955 Bom 419.
[3] Bhagwandas Goverdhandas Kedia v Girdharilal Parshottamdas & Co. AIR 1966 SC 543.
[4] Indian Contract Act 1872, s 17
[5] Tukaram and Another v State of Maharashtra AIR 1979 SC 185.
[6] Upendra Baxi, Ragunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar, ‘An Open Letter to the Chief Justice of India’ (1979), discussed in Upendra Baxi, (1979) 4 SCC (Jour) 17, 17–23.
[7] Criminal Law (Amendment) Act 1983.
[8] Indian Penal Code 1860, s 375 (as amended by the Criminal Law (Amendment) Act 2013); Bharatiya Nyaya Sanhita 2023, s 63.
[9] Consumer Protection Act 2019, ss 2(9)(ii), 2(47).
[10] Sehgal School of Competition v Dalbir Singh III (2009) CPJ 33 (NC).
[11] Indian Contract Act 1872, s 17.
[12] Code of Civil Procedure 1908, O VIII r 1.
[13] The Constitution of India, art 21
[14] State of Karnataka v Krishnappa (2000) 4 SCC 75