Section 88 IPC and Section 26 BNS: Acts Done in Good Faith with Consent

Section 88 of the Indian Penal Code, 1860 provided a general exception for certain acts done in good faith for another person's benefit with that person's consent. Its corresponding provision under the Bharatiya Nyaya Sanhita, 2023 is Section 26.

Meaning of Section 88 IPC

Section 88 IPC addressed harm caused by an act performed for the benefit of a consenting person in good faith, where the person performing the act did not intend to cause death. Consent may be express or implied and may extend to suffering harm or taking the risk of harm.

Statutory provision: Section 88 IPC

Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

Statutory illustration

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.

The statutory illustration demonstrates the exception where an operation is undertaken for the patient's benefit with consent and without an intention to cause death. It does not provide blanket immunity for negligent or unlawful treatment.

Section 26 of the Bharatiya Nyaya Sanhita, 2023

Section 26 BNS, titled Act not intended to cause death, done by consent in good faith for person's benefit, substantially carries forward Section 88 IPC. It protects an act from being treated as an offence merely because of harm caused or risked, when the statutory requirements of good faith, benefit, consent and absence of an intention to cause death are met.

Read the official statutory text through the National Crime Records Bureau BNS chapter text and the Bureau of Police Research and Development BNS reference publication.

Essential conditions for the exception

1. No intention to cause death: The person doing the act must not intend the recipient's death.
2. Benefit of the person: The act must be undertaken for the benefit of the person who may suffer harm.
3. Good faith: Under the BNS definition, good faith requires due care and attention; a sincere motive alone is insufficient.
4. Valid consent: The person must consent, expressly or impliedly, to the harm or its risk. Whether consent is legally effective depends on the circumstances and related statutory provisions.
5. Connection with the harm: The harm must arise from the act undertaken on the stated conditions; the exception is not a general permission to commit other offences.

Consent, medical treatment and legal limits

Express consent is directly communicated, orally or in writing. Implied consent is inferred from conduct in circumstances where such inference is legally justified. In healthcare, informed consent and applicable professional standards remain important. Consent alone does not excuse gross negligence, lack of due care, or conduct that is independently criminal.

Section 28 BNS addresses circumstances in which purported consent is ineffective, including specified cases involving fear, misconception, inability to understand due to unsoundness of mind or intoxication, and consent by a person under twelve unless the context indicates otherwise. Section 27 BNS concerns acts for the benefit of a child under twelve or a person of unsound mind by, or with consent of, a guardian, subject to express limitations. Section 30 BNS concerns qualifying acts in good faith for a person's benefit without consent where obtaining consent in time is not possible.

Section 29 BNS clarifies that the exceptions relating to consent do not extend to acts that are offences independently of any harm they may cause, intend or be likely to cause.

Section 88 IPC compared with Section 26 BNS

The central legal test remains substantially the same: absence of intent to cause death, good faith, the person's benefit and consent to the harm or risk. The principal change is the statutory framework and section number. The applicable law for a particular incident must be assessed with reference to the date of the alleged act and relevant saving provisions.

Practical examples

Potentially covered: A qualified surgeon performs a medically indicated high-risk procedure with legally valid patient consent, reasonable care and no intention to cause death, even though complications may cause injury.

Not automatically covered: A person performs a dangerous procedure without appropriate care or valid consent. Merely claiming to act for someone's benefit does not establish the statutory exception.

Frequently asked questions

Official legal references

• NCRB, Ministry of Home Affairs: Bharatiya Nyaya Sanhita chapters
• Bureau of Police Research and Development: Bharatiya Nyaya Sanhita reference text
• India Code: Central legislation database

This article provides general legal information and is not a substitute for advice on particular facts.