Bharatiya Nyaya Sanhita, 2023
Section 26
Act not intended to cause death, done by consent in good faith for person’s benefit
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.
Why this exists
This provision (continuing the logic of Section 88 of the old Indian Penal Code, 1860) recognizes that medical treatment, surgery, and similar beneficial risky acts would be impossible if every side-effect or complication counted as a crime. It balances individual bodily autonomy (through consent) with the doer's good-faith intent to help, while drawing a firm line: this protection never covers acts intended to cause death, distinguishing genuine treatment from euthanasia or homicide.
How courts read it
Indian courts, interpreting the identical predecessor Section 88 IPC, have consistently held that good faith and genuine consent are essential — consent obtained through fraud, coercion, or from a person incapable of understanding the risk (like a minor or unconscious patient without guardian consent) does not attract this protection. Courts have also stressed that the doer's intention must never be to cause death, distinguishing lawful medical risk-taking from culpable homicide; this reasoning has been applied in cases involving surgical negligence and consent disputes.
Common misconceptions
- Myth: This section allows mercy killing or euthanasia if the patient consents.
Fact: The section explicitly excludes acts intended to cause death — it only protects acts not meant to kill, even if death is a known risk. - Myth: Any consent form signed by a patient automatically protects the doctor under this section.
Fact: Courts require the consent to be genuine, informed, and given in good faith circumstances; consent obtained by fraud or from someone incapable of understanding the risk does not qualify.