Section 26 of Bharatiya Nyaya Sanhita (BNS): Act not intended to cause death, done by consent in good faith for person’s benefit

In BNS, this chapter deals with the concept of responsibility, which is complex, that is, when one harms others while doing the activities done for good reasons. The moral and legal implications change when someone acts in someone else’s best interests with that person’s permission. 

This section admits that not every bad outcome must lead to punishment, especially when the negative effect is viewed as an acceptable risk in order to achieve a greater good. In this discussion, intention, consent and results together are considered and maintained that a good intention action cannot lead to liability where the parties have taken the risk irrespective of all known or unknown negative effects of the action.

Section 26 of BNS

Section 26 of Bhartiya Nyaya Sanhita (BNS) states that an act of good faith for the benefit of a person who has given his consent, with such act not intending to cause death or grievous hurt, would not be unlawful.

This section is mentioned in the Bharatiya Nyaya Sanhita 2023 Act’s CHAPTER III GENERAL EXCEPTIONS which states: 

• Statement: 

“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.”

• Meaning:

The statement means that if someone does something, which might cause harm, but did not intend to kill, it is not a crime if the said harm is intended to aid somebody else. Furthermore, the person to be hurt should have agreed directly or through his/her actions. Moreover, the action has to be made honestly and in good faith. In other words, if you agree to let someone take a risk or do something that could harm you and if it isn’t meant to kill, of course, the person performing the action is not committing an offence.

• Meaning in Points

The statement is that even though the person does something that may harm but certainly does not intend to kill, it is not a crime under the following conditions:

1. Meant for the help of someone.
2. The victim of the act has accepted it. Either directly or by their action.
3. The action is made in good faith and in good conscience.

Instead of speaking clearly, if you agree to risk it or let someone do something to harm you (as long as it’s not to kill), then the person doing it is not committing a crime.

• Illustration

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the 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.

• Meaning

The above example depicts a situation in which the surgeon performs an absolutely dangerous operation in the presence of consent from the patient as well as with his intention to help that patient, though he knows that the operation may well cause death. In such circumstances, the surgeon has not committed an offence.

What are CHAPTER III General Exceptions?

General exceptions are provisions of law that create defence against criminal liability. This accepts the fact that not all Person who are breaking the law are criminal but these exceptions need to be provided for circumstances in which the actions of the person may actually be unlawful but isn’t punished with criminal penalties due to specific justifications.

Difference between IPC and BNS regarding Act not intended to cause death, done by consent in good faith for person’s benefit.

Key Points in Section 26 of BNS

1. No Intent to Cause Death:

The person doing the act does not intend to cause death. It is a strict condition which needs to be satisfied in order for the act to be justified under this section. That is, if the damage is not intended to cause death, it will be justified.

2. Harm Caused for the Good of the Person:

The harm caused by the act should be for the good of the person undergoing it.

3. Consent:

The one suffering harm must have given their consent by openly declaring it or by their action that would imply that he gave his consent to undergo the risks associated with the activity.

• Explicit consent: The person openly declares that he has given the consent for the risk or harm.

• Implicit consent: The actions of the person would imply that he gave consent to the risk of the doer’s action. 

4. Good Faith:

The act has to be done in good faith meaning with honest intentions and without malice. If the person causing the damage genuinely believes that their act will benefit the other party and acts accordingly, then the act cannot be said to be an offence.

5. Risk of Harm:

The person who consents also needs to be aware and agree to risk of harm. Under this section, adults can give their consent to risks with their very interests being at the forefront as long as they know that danger may be ahead.

6. Harm Known by the act:

The person performing the act may know that harm is likely, but so long as they believe that the act benefits the other party, and the other party has consented to the risk, the act is not considered an offence.

Examples based on Section 26 of BNS

1. Sports Injuries

In football, a player tackles another player aggressively. The tackle results in an injury but was not intended to cause any damage. The players knew the risks of the game and agreed to the impacts involved. As the action is performed in the spirit of the game and good for tacklers team member with no intent to cause severe damage, the tackler is not committing an offence.

2. Medical Operations: 

A surgeon performs a dangerous operation to save the life of the patient. The patient had given his consent and was told of the possibility of complications from operation. If such an injury resulted from the operation without malice and for the good of the patient then no crime was committed against him because he agreed to undergo such an operation.

3. Helping a Friend: 

Dev is helping his friend Vishnu to repair his car by lifting the vehicle. This act could put Dev in danger but still he put himself at risk and agrees to help Vishnu. If any accident occurs and Dev gets slightly injured during the process then he cannot hold Vishnu responsible. This is because Dev consented to the risk of injury and Vishnu’s intention was not to cause harm.

4. Self-defence: 

If someone cause harm to an attacker in the process of defending themself or other. The defender commits no crime if his actions were to protect the other with honesty and good faith because an attacker takes the risk by threatening to harm someone else.

5. Group Activities: 

In group hiking one member of the group encourages a fellow member to climb a steep rock knowing it would be dangerous. The one climbing agreed knowing his chances of falling and getting hurt were real. In the event that they do fall and get injured, the person who encouraged climbing has committed no offense in law since the one climbing consented to assume the risk and his purpose was to support adventure but not to harm.

6. Adventure Sports: 

In a bungee jumping case, an instructor gets a jumper ready for the adventure. If the instructor commits a minor mistake that results in small scare but the jumper had signed a waiver and was well aware of the dangers, no crime is committed by the instructor. The act is to indulge in an exciting experience and the jumper has assented to the risk.

Latest Updates

Section 26 of BNS talks about what happens if a doctor performs a medical operation that might be risky. It says that if a doctor knows that a surgery could be dangerous, but they are doing it to help the patient and the patient agrees, the doctor won’t be in trouble, even if things go wrong.

Doctors want the government to make this clearer so that when something bad happens during surgery, doctors don’t get blamed unfairly if they were just trying to help. The Indian Medical Association (IMA) is asking the government to make sure that doctors aren’t punished like criminals when they don’t mean to cause harm. 

On July 1, IMA has also appealed to Prime Minister Narendra Modi to issue a circular memorandum on provisions under Sections 26 of the Bharatiya Nyaya Sanhita (BNS). The doctors’ association argued that an order from the PMO providing further clarifications on provisions under Sections 26 of the BNS should be issued for the benefit of investigating officers (IO).

Conclusion

Section 26 of the BNS constitutes an essential provision under law that makes a distinction between acts done in malice and those done in good faith. This allows it to recognise that human interaction is complicated and safeguard those who are acting in good faith and helping others, yet call to account when need be.

Such an understanding of this section becomes important to navigate through the complexities of law and ethics so we can form a society where good intentions can flourish without fear of undue legal repercussions.

Citations

1. COMPARISON SUMMARY BNS to IPC
2. MINISTRY OF LAW AND JUSTICE

Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws, procedures, fees, and timelines may vary depending on the state and individual circumstances. For advice specific to your situation, please consult a qualified legal professional.