General exceptions: consent, good faith, compulsion and trifles

1. Consent to harm not intended or known to cause death or grievous hurt: section 25

Nothing which is not intended to cause death or grievous hurt, and is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm it causes to a person above eighteen who has consented, expressly or impliedly, to suffer that harm or to take the risk of it (old s.87 IPC). Illustration: A and Z fence for amusement; if A, playing fairly, hurts Z, no offence. This covers sports and games played within their rules.

2. Consent plus good faith for the person's benefit: section 26

Nothing which is not intended to cause death is an offence by reason of any harm which it may cause, or be intended to cause, or be known to be likely to cause, to a person for whose benefit it is done in good faith, and who has consented, expressly or impliedly, to suffer that harm or take the risk of it (old s.88 IPC). There is no age limit in the section, but a consent given by a person under twelve is not valid consent (s.28(c)).

The difference from s.25 is that s.26 covers acts known to be likely to cause death and even acts intended to cause grievous hurt (an amputation), so long as death is not intended and the act is for the person's benefit. That is why it is the surgeon's section.

3. Acts for the benefit of a child or a person of unsound mind: section 27

Acts done in good faith for the benefit of a person under twelve or of unsound mind, by or with the consent of the guardian or other person in lawful charge, are protected (old s.89). The proviso excludes: (a) intentionally causing or attempting to cause death; (b) doing anything known to be likely to cause death, other than to prevent death or grievous hurt or cure a grievous disease; (c) voluntarily causing grievous hurt, except for those purposes; and (d) abetment of an offence to which the exception would not extend. Illustration: a father, for his child's benefit, has the child operated on for stone, knowing the operation is likely to cause death but not intending it.

4. What is not consent: section 28

A consent is not a consent intended by any section of the Sanhita (old s.90) if it is given:

• (a) under fear of injury or under a misconception of fact, and the doer knows or has reason to believe this;
• (b) by a person who, from unsoundness of mind or intoxication, cannot understand the nature and consequence of what he consents to; or
• (c) unless the context otherwise requires, by a person under twelve.

Section 28(a) is also the basis of the false promise to marry cases in rape law, now dealt with separately by s.69.

5. Acts that are offences independently of harm: section 29

The consent exceptions in ss.25–27 do not extend to acts which are offences independently of the harm they cause (old s.91). The illustration is causing miscarriage: it is an offence in itself (s.88), so the woman's consent does not justify it, unless done in good faith to save her life. Public nuisance and offences against public decency are others.

6. Good faith without consent: section 30

Where it is impossible for the person to signify consent, or he is incapable of consenting and has no guardian from whom consent can be obtained in time, an act done in good faith for his benefit is protected even without consent (old s.92), subject to provisos similar to s.27 (with “hurt” in place of “grievous hurt” in clause (c)). Illustrations: a surgeon trepans an unconscious rider thrown from his horse; A fires at a tiger carrying off Z, knowing the shot may kill Z; a man drops a child from a burning house into a blanket. The Explanation to s.30 states that mere pecuniary benefit is not “benefit” for ss.26, 27 and 30.

7. Communication in good faith: section 31

No communication made in good faith for the benefit of the person to whom it is made is an offence by reason of harm it causes him (old s.93). A surgeon who tells a patient in good faith that he cannot live commits no offence if the patient dies of the shock.

8. Compulsion by threats: section 32

Except murder and offences against the State punishable with death, nothing is an offence which is done by a person compelled to do it by threats which, at the time, reasonably cause the apprehension of instant death to that person (old s.94). Conditions:

• the threat must be of instant death to the person himself, not of hurt or of harm to another;
• the threat must operate at the time of the act;
• he must not have placed himself in the situation of his own accord. A man who joins a gang of dacoits knowing their character cannot plead their threats (Explanation 1); a smith seized by dacoits and forced at the point of death to break open a door can (Explanation 2).

9. Slight harm: section 33

Nothing is an offence by reason of harm so slight that no person of ordinary sense and temper would complain of it (old s.95). This is the maxim de minimis non curat lex. In Veeda Menezes v. Yusuf Khan, 1966 INSC 96, AIR 1966 SC 1773, the respondent, in the course of a heated exchange, threw a file of papers at the appellant's husband, causing a scratch. The Court held that s.95 applied: whether harm is slight depends on its nature, the relation of the parties and the circumstances, and need not be judged by the injury alone.

10. Problem

A surgeon, knowing that a particular operation is likely to cause the death of his patient, who suffers from a painful complaint, but not intending to cause death and intending in good faith the patient's benefit, performs the operation with the patient's consent. The patient dies. Has the surgeon committed an offence?

Issue. Whether the death, caused by an act known to be likely to cause death, is protected by a general exception, so that the surgeon is not liable for culpable homicide (s.100) or causing death by negligence (s.106).

Law. Section 26 BNS (old s.88 IPC) protects an act not intended to cause death, even if known to be likely to cause death, done in good faith for the benefit of a person who has consented to suffer the harm or take the risk. “Good faith” under s.2(11) requires due care and attention. Consent must be real under s.28: not obtained by fear or misconception, and given by a person capable of understanding it. The illustration to s.26 is this very case.

Application. Each element is present: the surgeon did not intend death; the operation was for the patient's benefit, to relieve a painful complaint; the patient consented to the risk. Provided the surgeon explained the risk, so that consent was informed and not given under misconception, and he operated with due care and skill, the exception applies. The result changes in three variations worth adding. First, if the surgeon was careless (for example, operated without necessary tests), there is no good faith, s.26 fails, and he may be liable under s.106(1) for death by a rash or negligent act; for a registered medical practitioner the maximum is two years. Even then, criminal liability requires gross negligence, as the Supreme Court held in Jacob Mathew v. State of Punjab, 2005 INSC 334, (2005) 6 SCC 1. Second, if the patient was a child under twelve, the guardian's consent is needed (s.27). Third, if the patient was unconscious and no guardian could be reached in time, s.30 applies.

Conclusion. The surgeon has committed no offence. He is protected by s.26 BNS, as the illustration to the section states.

How this is examined

The surgeon problem has been set in recent KSLU papers and is answered as above. Essays ask for “consent as a defence under the BNS” or “the right of a doctor to operate without consent”. Arrange the answer by the ladder of ss.25, 26, 27 and 30, then s.28 on what is not consent, then s.29. Short notes: compulsion (s.32), trifles (s.33), communication in good faith (s.31).