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 of the Bharatiya Nyaya Sanhita (BNS), titled “Act Not Intended to Cause Death, Done by Consent in Good Faith for Person’s Benefit,” provides immunity from criminal liability for acts performed with the consent of another person, done in good faith for that person’s benefit, and without any intention to cause death. This section applies when an individual acts with genuine concern for another person’s welfare, even if there is some risk involved, as long as the intent is to help rather than harm.
Key Points of Section 26
- Consent of the Person Benefited:
- This section applies when the person who benefits from the act gives their informed consent. Consent implies that the individual understands the nature of the act and agrees to it willingly, knowing it is meant for their benefit.
- Good Faith Requirement:
- The person performing the act must act in good faith, with honest intentions and a genuine desire to benefit the other person. Good faith ensures that the individual’s actions are motivated solely by concern for the other person’s well-being, with no intent to harm.
- No Intent to Cause Death:
- The act must not be intended to cause death, even if it carries some degree of risk. The person performing the act should aim to help or benefit the other individual without any expectation or intent that death might result.
- Reasonable Risk Assessment:
- Although there may be some risks involved, the action must be reasonable and justifiable under the circumstances. This section protects actions where the potential benefit outweighs the risk, such as performing emergency medical procedures or making quick decisions to aid someone in danger.
- Examples of Protected Actions:
- If a person provides emergency medical assistance to another person with their consent, such as performing a minor surgical procedure in a remote location, Section 26 may offer protection if the intent is to help and not to harm. Another example could be someone giving consent for a treatment that may have risks but is necessary for their health or safety.
- Exclusion of Reckless or Harmful Acts:
- This section does not protect individuals who act recklessly, negligently, or without proper consideration for the other person’s safety. It covers only those acts that are both well-intentioned and reasonable, where the primary aim is the other person’s welfare.
- Judicial Evaluation of Benefit and Good Faith:
- Courts examine the nature of the act, the circumstances, and whether the person acted with honest intent. They also consider whether the potential benefits of the act justified any risks involved and whether the consent was informed and freely given.
Purpose of Section 26
The purpose of Section 26 is to encourage people to act in good faith for the benefit of others without fear of criminal liability, as long as their actions are well-intentioned and reasonably safe. By offering immunity in situations where consent is given and the act is done for the other person’s welfare, this section promotes acts of kindness, assistance, and caregiving, especially in emergencies. Section 26 reinforces a compassionate approach in the legal framework, allowing individuals to make decisions in good faith for someone’s benefit, even if the action involves some risk, as long as it is done without the intention of causing harm.
