1. Meaning and Object of Section 26 BNS
Section 26 of the Bharatiya Nyaya Sanhita, 2023 deals with a General Exception based on consent, good faith and the benefit of the person. The provision applies to situations where an act causes, or is intended or known to be likely to cause, some harm to a person, but the act is performed for that person’s benefit, in good faith, and with that person’s consent.
The opening words of the Bare Act are:
“Nothing, which is not intended to cause death, is an offence by reason of any harm…”
The most important feature of this language is that Section 26 does not require the person performing the act to be unaware of the possibility of harm. The section expressly recognises a situation where the harm may be:
“known by the doer to be likely to cause”
to the person.
Therefore, Section 26 is broader than Section 25 in relation to knowledge of harm.
However, this does not mean that a person can cause any harm merely because the affected person has consented. Section 26 contains several safeguards. The act must not be intended to cause death, it must be done for the benefit of the person, it must be done in good faith, and the person must have given the required consent.
The underlying principle is that a beneficial act should not become criminal merely because the person performing it knows that some harm or risk may result from it, provided the statutory requirements are satisfied.
The illustration involving a surgeon makes this principle particularly clear.
2. Consent for the Benefit of the Person
The first major requirement of Section 26 is that the act must be performed for the benefit of the person who suffers the harm.
The Bare Act states:
“to any person for whose benefit it is done in good faith”
This means that the purpose of the act must be connected with the benefit of the person upon whom the act is performed.
Consent alone is therefore not sufficient.
Suppose A causes some harm to B, and B has consented to it. If the act is not genuinely performed for B’s benefit, Section 26 cannot simply be invoked on the basis of consent.
The provision is designed for situations where a person voluntarily accepts some harm or risk because the act is intended to produce a beneficial result for that person.
Example
Suppose Z is suffering from a serious and painful condition. A surgeon recommends an operation that carries a substantial risk of harm. Z understands the situation and consents to the operation. The surgeon performs the operation because it is intended to improve Z’s condition and not because the surgeon wants to harm Z.
Here, the element of benefit becomes central to Section 26.
The statutory illustration uses exactly this principle. The surgeon performs the operation:
“intending, in good faith, Z’s benefit”
Thus, the benefit is not merely incidental. It is an important reason why the law protects the act.
3. Act Done in Good Faith
Another essential requirement is that the act must be done:
“in good faith”
for the benefit of the person concerned.
The expression “good faith” indicates that the person performing the act must genuinely act for the person’s benefit. The protection is therefore based on the honest and beneficial purpose behind the act, rather than merely on the existence of consent.
For example, a surgeon may perform a risky operation because the surgeon genuinely believes that the operation is necessary or beneficial for the patient. The surgeon knows that complications may occur, but the purpose is to treat the patient.
This is fundamentally different from a situation where a person deliberately causes harm and subsequently attempts to describe that harm as beneficial.
Good Faith Is Not a Mere Label
A person cannot obtain the protection of Section 26 simply by saying:
“I acted in good faith.”
The circumstances surrounding the act must demonstrate that it was genuinely performed for the benefit of the person concerned.
The nature of the act, its purpose, the circumstances in which it was performed, and the manner in which it was carried out can all become relevant when determining whether the requirement of good faith is satisfied.
Therefore, good faith and benefit must be read together.
4. Act Not Intended to Cause Death
The most important limitation in Section 26 is the requirement that the act must not be intended to cause death.
The Bare Act begins:
“Nothing, which is not intended to cause death…”
This means that the person performing the act must not have the intention to cause death.
This requirement is particularly important because Section 26 may apply even where the person knows that the act could cause serious harm or even death.
The statutory illustration makes this very clear.
The surgeon:
“knowing that a particular operation is likely to cause the death of Z”
nevertheless performs the operation because the surgeon is:
“not intending to cause Z’s death”
and is:
“intending, in good faith, Z’s benefit”
The distinction is therefore between knowledge of a possible or likely consequence and intention to bring about that consequence.
If death is the objective of the person performing the act, Section 26 cannot provide protection.
If death is merely a known risk or possible consequence of an otherwise beneficial act, Section 26 may apply if its other requirements are satisfied.
5. Knowledge That the Act May Cause Harm
This is one of the most important aspects of Section 26.
The provision expressly covers harm which may be:
“known by the doer to be likely to cause”
to the person.
Therefore, unlike Section 25, Section 26 does not require the absence of knowledge that harm is likely.
This can be understood through the surgical illustration.
A surgeon knows that an operation is likely to cause Z’s death. Nevertheless, the surgeon performs the operation because it is intended, in good faith, to benefit Z and Z has consented.
The surgeon’s knowledge of the risk does not by itself destroy the protection because the surgeon does not intend to cause death.
This gives Section 26 a very important principle:
Knowledge of harm is not by itself enough to deny the protection of Section 26.
The provision instead asks whether the act was performed for the person’s benefit, in good faith, with consent, and without an intention to cause death.
6. Essential Ingredients of Section 26 BNS
Section 26 should be understood as a combination of several requirements rather than as a simple rule based on consent.
The first requirement is that the act must not be intended to cause death. This is expressly stated in the opening words:
“Nothing, which is not intended to cause death…”
The second requirement is that the act must be performed for the benefit of the person concerned.
The third requirement is that the act must be performed:
“in good faith”
The fourth requirement relates to consent. The person must have:
“given a consent, whether express or implied”
The fifth requirement is that the consent must relate either to suffering the harm or taking the risk of the harm. The Bare Act uses the words:
“to suffer that harm, or to take the risk of that harm.”
The sixth important feature is that the harm may be one which the doer intended to cause, or knew was likely to be caused, provided the act itself was not intended to cause death and the other requirements are fulfilled.
Therefore, the provision can be remembered conceptually as:
No intention to cause death + benefit of the person + good faith + consent + harm/risk contemplated by the consent.
7. Medical Treatment and Surgical Operations
Medical treatment is the clearest practical example of Section 26.
Medical procedures can involve significant risks. A doctor may know that a particular procedure may cause serious injury, complications or even death. Nevertheless, the doctor may perform the procedure because it is intended to treat the patient and improve the patient’s condition.
The illustration to Section 26 specifically deals with such a situation.
The Bare Act provides:
“A, a surgeon, knowing that a particular operation is likely to cause the death of Z…”
The surgeon nevertheless performs the operation because:
“not intending to cause Z’s death”
and:
“intending, in good faith, Z’s benefit”
and does so:
“with Z’s consent.”
The Bare Act concludes:
“A has committed no offence.”
This illustration is extremely important because it brings together almost every major element of Section 26.
Why the Surgeon Is Protected in the Illustration
The surgeon knows that the operation is likely to cause death, but knowledge is not the same as intention.
The surgeon’s purpose is not to kill Z. The purpose is to provide beneficial treatment.
Z has also consented to the operation.
The surgeon is acting in good faith for Z’s benefit.
Therefore, the statutory conditions are satisfied.
8. Good Faith and Reasonable Care
Good faith is particularly important where the act involves a significant risk of harm.
The person performing the act should genuinely be acting for the benefit of the person concerned. A person cannot deliberately engage in an improper act and then rely upon the words “good faith” merely because the affected person gave consent.
In medical situations, the idea of good faith is especially important because medical treatment often involves difficult judgments and known risks.
For example, a doctor may have to choose between two treatments, both of which involve some risk. The fact that the chosen treatment eventually causes harm does not automatically mean that the doctor acted without good faith.
What matters is whether the treatment was undertaken genuinely for the patient’s benefit and whether the circumstances support the claim of good faith.
At the same time, Section 26 should not be understood as providing automatic immunity for every medical mistake or every harmful medical act.
The protection depends upon the statutory conditions being fulfilled.
Thus, the expression “in good faith” is an important safeguard against misuse of the consent-based exception.
9. Consent and Benefit of the Person
Consent under Section 26 has to be understood along with the requirement of benefit.
The Bare Act recognises:
“consent, whether express or implied”
This means that consent may be communicated directly or may be inferred from the circumstances.
The provision further states that the person may consent:
“to suffer that harm”
or:
“to take the risk of that harm.”
Therefore, the law recognises that a person may voluntarily accept a known risk because the underlying act is intended to provide a benefit.
Express Consent
Express consent is consent clearly communicated by the person.
For example, a patient expressly agrees to undergo a surgical procedure after understanding that the procedure carries certain risks.
Implied Consent
Implied consent is consent inferred from the person’s conduct or the circumstances.
For example, a person voluntarily submits to an ordinary treatment procedure where consent can reasonably be inferred from the circumstances.
However, consent must be connected with the act and the harm or risk contemplated.
The existence of consent does not mean that every subsequent or unrelated harmful act automatically receives protection.
10. Difference Between Section 25 and Section 26 BNS
The distinction between Sections 25 and 26 is extremely important.
Section 25
Section 25 protects certain acts done with the consent of a person above eighteen years where the act is:
“not intended to cause death, or grievous hurt”
and:
“not known by the doer to be likely to cause death or grievous hurt.”
Thus, Section 25 places limitations concerning both intention and knowledge.
Section 26
Section 26 states:
“Nothing, which is not intended to cause death…”
and then expressly includes harm that may be:
“known by the doer to be likely to cause”
to the person.
Thus, Section 26 permits the doer to know that harm is likely, provided the act is not intended to cause death and the other requirements of the provision are satisfied.
The Main Difference
The easiest way to remember the distinction is:
Section 25: Consent + no intention to cause death/grievous hurt + no knowledge that death/grievous hurt is likely.
Section 26: Consent + good faith + benefit of the person + no intention to cause death, even though harm may be known to be likely.
| Basis | Section 25 | Section 26 |
|---|---|---|
| Consent | Required | Required |
| Express/implied consent | Recognised | Recognised |
| Benefit of person | Not the central requirement | Central requirement |
| Good faith | Not expressly the central requirement | Expressly required |
| Intention to cause death | Must be absent | Must be absent |
| Knowledge of likely harm | Relevant limitation | May exist |
| Knowledge of likely death | Section 25 does not provide protection where the required prohibited knowledge exists | The illustration shows that knowledge of likely death can exist |
| Typical application | Consent to certain ordinary risks/harm | Medical treatment and surgery |
Memory Trick
Section 25 = Consent + No Intention + No Relevant Knowledge
Section 26 = Consent + Benefit + Good Faith + No Intention to Cause Death
11. Limitations and Exceptions
Section 26 provides an important protection, but it is not an unlimited defence.
Intention to Cause Death
The clearest limitation is that the act must not be intended to cause death.
If the purpose of the act is to cause death, the person cannot rely upon Section 26 merely because the affected person consented.
Lack of Good Faith
If the act is not genuinely performed for the person’s benefit and is instead motivated by an improper purpose, the requirement of good faith is not satisfied.
No Genuine Benefit
The act must be performed for the benefit of the person who suffers the harm.
A person cannot transform a harmful act into a protected act merely by claiming that it was beneficial.
Consent Must Exist
The person must have consented either to suffer the harm or to take the risk of that harm.
The section expressly recognises:
“whether express or implied”
consent.
Consent Is Not Unlimited
Consent to one act or risk should not automatically be treated as consent to every other act or consequence.
The scope of consent matters.
For example, if a person consents to a particular treatment, it does not necessarily mean that the person has consented to every unrelated procedure.
12. Illustrations and Examples
The Statutory Illustration — Surgeon
The most important example is the illustration provided directly under Section 26:
“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.”
This illustration demonstrates the entire principle.
The surgeon knows that the operation is likely to cause death.
However, the surgeon does not intend to cause death.
The purpose is Z’s benefit.
The surgeon acts in good faith.
Z has consented.
Therefore, the surgeon receives the protection of Section 26.
Example of a Risky Medical Procedure
Z suffers from a serious medical condition. A surgeon recommends an operation that carries a significant risk of serious harm. Z voluntarily consents to the operation.
The surgeon performs the operation because it is considered beneficial to Z and does not intend to cause Z’s death.
If the known risk materialises, the mere fact that the surgeon knew that harm was likely does not, by itself, remove the protection contemplated by Section 26.
Example of Consent to Take a Risk
Z agrees to undergo a procedure knowing that there is a risk of serious physical harm. The procedure is performed for Z’s benefit and in good faith, without an intention to cause Z’s death.
Here, Z’s consent to:
“take the risk of that harm”
is directly relevant to Section 26.
Example Where Section 26 Cannot Apply
Suppose A performs an act upon Z with the intention of causing Z’s death, even though Z has consented.
The fundamental condition of Section 26 is absent because the Bare Act requires an act:
“which is not intended to cause death.”
Therefore, consent cannot convert an intentional act of causing death into an act protected by Section 26.
Example of Lack of Benefit
Suppose A causes serious harm to Z while claiming that the act was for Z’s benefit, but A’s real purpose is to obtain a personal advantage.
The protection of Section 26 cannot be assumed merely because A uses the word “benefit.” The provision specifically requires the act to be done for the benefit of the person in good faith.
13. Important Case Laws
For your notes, the important case-law discussion should be connected to the principles underlying Section 26, particularly consent, medical treatment, good faith and criminal liability for harmful acts.
Because Section 26 BNS deals with a principle that existed under the earlier criminal-law framework, cases decided under the corresponding provision of the IPC can be useful for understanding the concept.
Jacob Mathew v. State of Punjab
This case is important in understanding criminal liability for medical negligence.
The Supreme Court considered the distinction between an ordinary error or lack of perfection in medical treatment and conduct serious enough to attract criminal liability.
For Section 26, the case is useful because it helps explain why the mere fact that medical treatment results in harm does not automatically mean that the medical professional has committed a criminal offence.
The circumstances, nature of the conduct and the level of negligence involved are important.
Samira Kohli v. Dr. Prabha Manchanda
This case is particularly important for the concept of medical consent.
The decision demonstrates that consent is not an unlimited authorisation for a doctor to perform any procedure that the doctor considers beneficial.
Consent must be understood in relation to the treatment or procedure for which it was given, subject to the circumstances recognised by law.
Therefore, this case is useful when explaining the phrase:
“who has given a consent, whether express or implied”
under Section 26.
FAQs on Section 26 BNS
1. What is Section 26 of the BNS?
Section 26 BNS provides a General Exception for an act done with consent, in good faith and for the benefit of the person concerned. The act must not be intended to cause death. The provision can apply even where the doer knows that the act is likely to cause some harm, provided the other requirements of Section 26 are satisfied.
2. Is knowledge that an act may cause harm allowed under Section 26 BNS?
Yes. This is one of the most important features of Section 26. The Bare Act expressly covers harm that may be “known by the doer to be likely to cause” to the person. Therefore, knowledge of likely harm does not automatically prevent the protection of Section 26. However, the act must not be intended to cause death and must be done in good faith for the person’s benefit.
3. What is the importance of good faith under Section 26 BNS?
The act must be performed “in good faith” for the benefit of the person concerned. Good faith means that the act must genuinely be undertaken for that person’s benefit and not merely be given a beneficial description after the event. Consent alone is therefore not sufficient; the purpose and circumstances of the act must also satisfy the requirement of good faith.
4. Does Section 26 BNS apply to medical treatment and surgery?
Yes. Medical treatment and surgical operations are the clearest examples of Section 26. The statutory illustration itself deals with a surgeon who knows that an operation is likely to cause the patient’s death but performs it in good faith for the patient’s benefit, without intending to cause death, and with the patient’s consent. The illustration concludes that the surgeon has committed no offence.
5. What is the difference between Section 25 and Section 26 BNS?
The key difference is the knowledge of harm. Section 25 requires that the doer must not know that the act is likely to cause death or grievous hurt. Section 26, on the other hand, can apply even when the doer knows that harm is likely, provided the act is not intended to cause death, is done in good faith for the person’s benefit, and the person has consented to suffer the harm or take its risk.