BNS Section 29 - Exclusion Of Acts Which Are Offences Independently Of Harm Caused

BNS Section 29 of the Bharatiya Nyaya Sanhita, 2023 (BNS), sets an important limit on the scope of the consent-related exceptions in Sections 21, 22, and 23 of the BNS. This section essentially indicates that consent alone is insufficient to cancel out criminal liability when a person has consented to an act that amounts to an offense, irrespective of the harm caused or that the person intended or knew that the act was likely to cause harm, either to himself or to a person on behalf of whom the consent was provided. This was intended to bind acts that are inherently wrongful, and will remain punishable regardless of consent. As we mentioned before, BNS Section 29 is a direct equivalent and a restatement of the earlier Indian Penal Code (IPC), Section 91, which follows the same principle. A solid understanding of this section is very important if we are to understand the limits of consent as a defence in criminal law.

In this article, you will get to know about

• Simplified Explanation of Section 29 of the BNS.
• Key Details.
• Practical Examples Illustrating BNS Section 29.

Legal Provision

Section 29 of the BNS ‘Exclusion of acts which are offences independently of harm caused,’ states:

The exceptions in sections 21, 22 and 23 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.

Illustration: Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.

Simplified Explanation

To put it simply, BNS Section 29 says there are things that are crimes regardless of consent. Try to think of it this way: the law declares that some things are simply wrong in themselves, not just wrong based on the harm they might cause to a specific person. In other words, the statement "You can't do that to me because I don't consent" is irrelevant to the crime if that action is defined as an offence for reason(s) other than sheer harm to that person.

The key elements of Section 29 of BNS are:

Exclusion of Consent-Based Exceptions

This is a clear statement that the defenses of consent in BNS Sections 21 (An act is done in good faith for the benefit of another), 22 (An act that is likely to cause harm but is done in good faith for the benefit of a person), and 23 (Act is not meant to cause death, if it is done by consent in certain situations) do not apply in a narrow set of cases.

Offenses Independent of Harm

The basic idea is that the action in question must be an offense worthy of prosecution, independent of the harm that it may intend to cause or is believed to be likely to cause to the consenting person. This essentially results in the act being wrongful for reasons that the law recognizes as being other than a wrongful act.

Focus on the Nature of the Act

The law will look at the bare nature of the act itself. If that same act is already classified as a crime for reasons not explained simply by the harmful consequences to the consenting person, there is no consent that would prevent a prosecution.

Consent of the Person or Guardian

The exclusion applies, even if the consent was provided by the person who will suffer the potential harm, or someone acting on the person's behalf (like a guardian for a minor, although BNS Section 29 describes an individual as being greater than eighteen in the term of Sections 21, 22, and 23, the age of consent in those sections).

Key Details

Practical Examples Illustrating BNS Section 29

A few examples are:

Culpable Homicide Not Amounting to Murder

A person may voluntarily engage in a dangerous act while knowing there is a risk of death. However, if another person engages in an act with the intention of causing death or with knowledge that the act is likely to cause death and death occurs, this act may be culpable homicide not amounting to murder. The deceased's consent to engage in the dangerous act will not absolve the perpetrator of the more serious act of culpable homicide if culpable homicide is established.

Administering Poison with Intent to Harm

If someone poisons another person and intended to harm that other person – even if the other person said they would take the poison (but possibly unknowingly, or not fully knowingly or with some deception to take the poison) – the act of poisoning another person with that intention is conduct criminalize in and of itself. To the attention that the other person's consent was also obtained through deception and there was no full knowledge of the substance's toxic nature, this would not be a defence.

Key Improvements And Changes: IPC Section 91 To BNS Section 29

BNS section 29 is a complete copy of IPC section 91. There are no real changes or advantages to the wording or to the legal principle it conveys. The BNS has only changed the number of sections.

So, the important point is that the legislature has done nothing to alter the current legal understanding of the limits of consent in criminal law. With the enactment of the BNS, the legislature has chosen to continue the now former subsection as is, and along with it, allow the existing law to remain in force. Thus, the only "change" is the section number, from Section 91 in the IPC to Section 29 in the BNS. The applicable legal principle and its application are the same.

Conclusion

BNS Section 29 remains a core component of the criminal law and provides a clear demarcation of the scope of the defense of consent. It reinforces that consent is not a defense to certain kinds of harms, but also does not extend to acts that are considered a crime and are already recognized as wrong, independent of the harm the crime may cause or intend. BNS Section 29 prevents people from using consent to evade culpability of acts of an element of wrongfulness or against public policy by removing certain acts from the ability to be consented to that we find in previous sections. Its continuing existence indicates the requirement for balancing individual freedom against the overriding requirement of protecting individuals' interests and the rule of law.

FAQs

A few FAQs are:

Q1 - Why was IPC Section 91 revised and replaced with BNS Section 29?

IPC Section 91 was not specifically revised. The entire Indian Penal Code was replaced by the Bharatiya Nyaya Sanhita, 2023, as part of a comprehensive reform of India's criminal laws. BNS Section 29 is the corresponding provision that re-enacts the principle of excluding certain offenses from the defense of consent. The wording remains identical to IPC Section 91; the only change is the section number.

Q2 - What are the main differences between IPC Section 91 and BNS Section 29?

There are no substantive differences between IPC Section 91 and BNS Section 29. The text and the legal principle conveyed are exactly the same. The sole difference is the change in the section number within the new Bharatiya Nyaya Sanhita (BNS).

Q3 - Is BNS Section 29 a bailable or non-bailable offense?

BNS Section 29 does not define an offense itself. It clarifies the limitations on the defense of consent for acts that are already defined as offenses under other sections of the BNS. The bailable or non-bailable nature of the underlying offense would depend on the specific section of the BNS that defines that offense (e.g., causing miscarriage, culpable homicide, rape).

Q4 - What is the punishment for an offense under BNS Section 29?

BNS Section 29 does not prescribe a punishment. It states that consent is not a valid defense for acts that are offenses independently of harm. The punishment for such an act would be determined by the specific section of the BNS that defines that particular offense (e.g., the punishment for causing miscarriage would be found in the relevant section concerning that offense).

Q5 - What is the fine imposed under BNS Section 29?

Similarly, BNS Section 29 does not impose a fine. Any fine would be associated with the specific offense committed, as defined and penalized under the relevant sections of the BNS, where consent is not a valid defense due to the nature of the act itself.

Q6 - Is the offense under BNS Section 29 cognizable or non-cognizable?

BNS Section 29 does not define an offense, so it cannot be categorized as cognizable or non-cognizable. The cognizable or non-cognizable nature would depend on the specific offense committed that falls under the exclusion principle of BNS Section 29. For instance, causing miscarriage (not for saving the woman's life) is generally a cognizable offense under the IPC, and its corresponding provision in the BNS would likely also be cognizable.

Q7 - What is the BNS Section 29 equivalent of IPC Section 91?

The BNS Section 29 equivalent of IPC Section 91 is BNS Section 29 itself. It directly replaces and re-enacts the same legal principle concerning the exclusion of certain offenses from the defense of consent, with no changes to the text.