Section 88 of the Bharatiya Nyaya Sanhita (BNS), 2023
Section 88 – Bharatiya Nyaya Sanhita (BNS), 2023
Text of the Provision (Paraphrased)
Section 88 BNS deals with situations where a person causes harm to another for that person’s benefit, and with that person’s consent, and without any intention to cause death, even if there is risk of death.
It states that:
An act not intended to cause death, done by consent, in good faith for a person’s benefit, is not an offence, even if the act may cause harm or may be known to likely cause harm.
KEY INGREDIENTS OF SECTION 88
1. The act must be done in good faith
“Good faith” under Indian criminal law means due care and attention.
The doer must genuinely believe the act is necessary for the benefit of the person.
2. The act must be for the person’s benefit
The dominant purpose must be the welfare of the person who consents.
Examples: medical surgery, risky medical procedures, emergency action to save life.
3. Consent of the person harmed
Consent must be:
Voluntary
Informed (aware of risks)
Given by a person of sound mind
The consent may be express or implied (e.g., in medical emergencies).
4. The act must NOT be intended to cause death
If there is intention to kill, Section 88 does not apply.
Even if the person dies, the doer is protected if:
Death was unintended,
Act was in good faith,
Consent existed.
5. The act may involve risk of death
Section 88 recognizes that certain beneficial acts (such as surgery) involve inherent risk.
ILLUSTRATIONS (Based on Legal Principles)
Surgery
A surgeon performs an operation that involves risk of death.
Patient consents.
Surgeon acts with due care.
Patient dies.
Surgeon receives protection under Section 88.
Amputation
A patient consents to the amputation of a limb to stop the spread of gangrene.
The doctor performs it knowing it might risk death.
Death occurs.
Not an offence, because the act was for the benefit and with consent.
Risky rescue measure
A person drowning consents to being pulled roughly knowing it may injure them.
Rescuer acts in good faith but causes harm.
Protected.
IMPORTANT CASE LAW (IPC Precedents Applicable to BNS §88)
Since BNS 2023 is new, the courts rely on earlier IPC jurisprudence. Section 88 BNS is nearly identical to Section 88 of the IPC, 1860.
1. Poonam Verma v. Ashwin Patel (1996) 4 SCC 332
A homeopathic doctor treated a patient allopathically causing death.
Held:
“Good faith” requires due care and adherence to standards.
Acting outside one’s competence cannot be considered good faith.
Relevance: Section 88 protection is unavailable if the act is not performed with due care or professional competence.
2. Dr. Suresh Gupta v. Govt. of NCT of Delhi (2004) 6 SCC 422
A surgeon was accused of causing death during a minor cosmetic operation.
Supreme Court held:
Mere negligence is not enough.
Criminal liability requires gross negligence or recklessness.
Relevance: If a doctor performs surgery with reasonable care and skill, death will not attract criminal liability because Section 88 applies.
3. Jacob Mathew v. State of Punjab (2005) 6 SCC 1
Landmark case on medical negligence.
Supreme Court held:
Criminal liability only where negligence is gross.
Good faith and professional judgment receive legal protection.
Relevance: Reinforces Section 88’s shield where acts are done for benefit with consent.
4. Bhawna Bai v. Ghanshyam (2020) SCC OnLine SC 1230
Court emphasized:
"Good faith" must be judged considering the circumstances and skill of the accused.
Relevance: For Section 88, good faith demands honesty and reasonable care.
5. Harinath v. State (AIR 1958 All 123)
A compounder performed a risky injection causing death.
Court held:
No protection under Section 88 because he lacked medical qualification.
Relevance: Consent + good faith + benefit must be accompanied by competency.
WHAT SECTION 88 DOES NOT PROTECT
Section 88 does not protect acts where:
1. There is intention to cause death
Even with consent, an intention to kill is criminal (euthanasia is illegal in India except passive forms under Supreme Court orders).
2. Consent is not informed or voluntary
Entered under fear, fraud or misunderstanding.
3. Act is done without due care
Lack of skill, gross negligence, recklessness.
4. The person giving consent is a minor or of unsound mind
Consent from such persons is invalid for risky acts.
RELATION WITH OTHER BNS SECTIONS
Section 87 BNS – Act done by consent of a person above 18 years of age.
Section 89 BNS – Act done in good faith for the benefit of a child or insane person without consent.
Section 90 BNS – Consent obtained by fear or misconception is invalid.
Section 88 fits within this cluster dealing with consent and harm for benefit.
CONCLUSION
Section 88 BNS provides a legal shield for people—particularly medical professionals—who undertake acts involving risk, for the benefit of another, with their consent, in good faith, and without intent to cause death. Courts rely heavily on the standard of good faith, competence, and due care to determine criminal liability.
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