BNS Section 26 – Act Not Intended To Cause Death, Done By Consent In Good Faith For Person’s Benefit

India's new criminal code, the Bharatiya Nyaya Sanhita (BNS), contains Section 26, which offers an important exception to criminal liability for harm caused by an act if certain strict requirements are satisfied. This section protects people who carry out an act that they did not intend to cause death, and was not intended to cause, although they knew it was likely to cause, some form of harm, even with the consent of the person that was harmed, as long as they acted in good faith.

This section recognizes that people are autonomous individuals, with the authority to consent to risk for their own benefit, especially in relation to medical or similar beneficial interventions. BNS Section 26 is, in essence, the successor and equivalent of Section 88 of the Indian Penal Code (IPC) and preserves this important principle of law in respect of criminal liability and culpability within the new legislative framework of India.

In this article, you will get to know about:

• Simplified Explanation of BNS Section 26.
• Key Details.
• Practical Examples Illustrating BNS Section 26.

Legal Provision

Section 26 of BNS ‘Act not intended to cause death, done by consent in good faith for person’s benefit’ states:

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.

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.

Simplified Explanation

Section 26 protects a person where harm is caused by him/her acting in good faith for someone else’s benefit if the person who suffered harm has consented. The act must not have been meant to cause death, although it could have the possibility of injury or even death. The important factor is whether or not the person doing the act sincerely believes it is for the other person’s benefit and whether he/she has consented to the act, meaning either verbally or implicitly.

It is important to note that this section will usually apply in the medical context or in emergency situations where there is a risk of a procedure or action. If a doctor wants to do surgery that carries a risk that could lead to someone's death, it may be permissible so long as the person understands the risk and consents to it and the doctor is acting in good faith to help that patient. The law will not consider the actions of the doctor to be a criminal act.

The idea behind this section is that the law allows people to choose to undergo hazardous procedures to their own advantage, on the condition that no harm or murder is intended, and that the person acting is acting in good faith and for good reasons. It is meant to encourage professionals and caregivers to take enough steps without the threat of criminal prosecution, as long as they are reasonably acting in good faith and with valid consent.

Key Details

Practical Examples Illustrating BNS Section 26

A few examples are:

Medical Surgery

A surgeon ‘A' knows that a specific operation on a patient 'Z’ who is suffering from a painful condition has a risk of death. However, 'A' does not wish to cause the death of 'Z' and believes that the operation is in 'Z's best interest. 'Z' is aware of, and consents to, the risks associated with the surgery. If 'Z' suffers harm or dies from the operation (and 'A' does not intend for the death to occur), A has committed no offence under BNS Section 26 because (1) the act did not intend to cause the death, (2) the act was done in good faith for 'Z's benefit, and (3) 'Z' consented to the act with a full understanding of the risks.

Rescue Operations

A qualified lifeguard ‘B' attempts to rescue a life-threatening scenario swimmer 'C.’ The method by which life is attempted to be saved typically always includes physical contact, which may, without malice, cause some small injury. If 'B' is acting responsibly and with good intentions to save the life of 'C, and 'C' (should they be conscious) consent to be rescued implicitly by their need for rescue, then it is likely that by 'B' causing the minor harm there could be protection under BNS Section 26 and that 'B' had no intention to kill them but to act in the best interests of 'C'.

Key Improvements And Changes: IPC Section 88 To BNS Section 26

There are no meaningful differences in the key legal principle between IPC Section 88 and BNS Section 26. The only thing that is different is the renumbering of sections within the new context of the Bharatiya Nyaya Sanhita. So, instead of identifying "improvements and changes", it is most correct to say that BNS Section 26 is a continuation and renumbering of the existing IPC Section 88. A continuation of the understood legal principle that protects acts done in good faith with consent for a person's benefit (without the intent to cause death) under the new criminal code.

Conclusion

BNS Section 26, mirroring IPC Section 88, is a vital provision that acknowledges the importance of consent and good faith in actions that may cause harm but are not intended to cause death and are done for the benefit of the person harmed. It provides a necessary legal safeguard for individuals, particularly professionals like doctors, rescuers, and participants in consensual activities, who undertake actions that inherently carry some risk.

The key elements of absence of intent to cause death, good faith, and voluntary consent are crucial for this protection to apply. By maintaining this principle in the BNS, the Indian legal system continues to recognize the autonomy of individuals to make informed decisions about their well-being and protects those who act responsibly and with consent in their best interests.

FAQs

A few FAQs are:

Q1. Why was IPC Section 88 revised and replaced with BNS Section 26?

IPC Section 88 was not substantively revised. The enactment of the Bharatiya Nyaya Sanhita (BNS) is a comprehensive overhaul of India's criminal laws, replacing the IPC. As part of this process, all existing provisions of the IPC have been re-codified and renumbered within the BNS. BNS Section 26 is simply the new designation for the same legal principle previously articulated in IPC Section 88.

Q2. What are the main differences between IPC Section 88 and BNS Section 26?

The primary difference is the change in section number. The language and the core legal principle regarding the protection of acts done in good faith with consent for a person's benefit (without the intention to cause death) remain identical in both IPC Section 88 and BNS Section 26.

Q3. Is BNS Section 26 a bailable or non-bailable offense?

BNS Section 26 does not define an offense itself. It provides an exception to liability for acts that might otherwise be offenses. Therefore, the question of whether it is bailable or non-bailable is not directly applicable to this section. The bailability of the underlying act that caused harm would depend on the nature and severity of that act as defined in other sections of the BNS and the Bharatiya Nagarik Suraksha Sanhita (BNSS), the new code replacing the Code of Criminal Procedure.

Q4. What is the punishment for offense under BNS Section 26?

BNS Section 26 does not prescribe a punishment. It provides a defense against liability for an act that might otherwise be an offense. If the conditions of Section 26 are met, no offense is deemed to have been committed under this specific provision. The punishment would be relevant only if the act falls outside the scope of this exception and constitutes an offense under other sections of the BNS.

Q5. What is the fine imposed under BNS Section 26?

Similar to punishment, BNS Section 26 does not impose a fine. It provides a defense against criminal liability. Any fine would be associated with the specific offense committed under other sections of the BNS if the protection of Section 26 does not apply.

Q6. Is the offense under BNS Section 26 cognizable or non-cognizable?

Again, BNS Section 26 does not define an offense. It provides an exception to liability. The cognizability (whether the police can arrest without a warrant) of the underlying act that caused harm would depend on the nature of that act as defined in other sections of the BNS and the Bharatiya Nagarik Suraksha Sanhita (BNSS). The principles of Section 26 would be considered when determining if that act constitutes an offense in the first place.

Q7. What is the BNS Section 26 equivalent of IPC Section 88?

BNS Section 26 is the direct and exact equivalent of IPC Section 88. They contain the same wording and establish the same legal principle regarding the protection of acts done in good faith with consent for a person's benefit (without the intention to cause death). The only change is the section number within the new Bharatiya Nyaya Sanhita.