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Section 87 IPC: Consent to Harm and Risk

Section 87 of the Indian Penal Code, 1860 provided a general exception for certain harm suffered with consent by a person above eighteen years of age, where the act was neither intended nor known by the doer to be likely to cause death or grievous hurt.

Legal position covered: This article explains Section 87 IPC under the law applicable before the Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024. It is retained for reference to the IPC framework and matters governed by the earlier law.

Section 87 of the Indian Penal Code, 1860

Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.

Illustration

A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

Meaning and Scope of Section 87 IPC

Section 87 formed part of Chapter IV of the IPC dealing with General Exceptions. It recognized that, within the limits stated by the section, an adult may expressly or impliedly consent to suffer harm or to take the risk of harm.

The provision did not make consent an unlimited answer to criminal liability. Its protection depended upon the nature of the act, the doer's intention and knowledge, the age of the consenting person, and the existence of the required consent.

Essential Requirements of Section 87 IPC

The act must not be intended to cause death.
The act must not be intended to cause grievous hurt.
The doer must not know the act to be likely to cause death.
The doer must not know the act to be likely to cause grievous hurt.
The person giving consent must be above eighteen years of age.
Consent may be express or implied.
The consent may be to suffer the harm or to take the risk of the harm contemplated by the provision.

Consent May Be Express or Implied

Section 87 expressly recognized both express and implied consent. Express consent may be communicated directly. Implied consent may arise from conduct and the surrounding circumstances. The statutory illustration demonstrates implied consent: by agreeing to fence for amusement, the participants consent to harm that may occur in the course of fair play.

Consent to Suffer Harm and Consent to Take a Risk

The section addressed two related situations. A person above eighteen may consent to suffer harm, and may also consent to take the risk of harm that the doer knows may be likely to occur, provided the section's limits concerning death and grievous hurt are satisfied.

Age Requirement: Above Eighteen Years

The statutory text applies to a consenting person "above eighteen years of age." The age condition is therefore an express element of Section 87 and should be considered together with the validity and scope of the alleged consent.

Limits Concerning Death and Grievous Hurt

Important limitation: Section 87 does not extend its protection to an act intended to cause death or grievous hurt, or to an act that the doer knows to be likely to cause death or grievous hurt. Consent cannot be separated from these express statutory limits.

Meaning of Grievous Hurt

For the IPC framework, "grievous hurt" was specifically defined by Section 320 IPC. Section 87 therefore has to be read with the statutory meaning of grievous hurt when determining whether the intended or known consequence falls outside this general exception.

Illustration: Fencing for Amusement

The statutory illustration explains the operation of implied consent. When A and Z agree to fence for amusement, each impliedly consents to harm that may occur during fencing without foul play. If A plays fairly and hurts Z, the illustration states that A commits no offence. The words "without foul play" are significant because the implied consent arises within the scope of the activity agreed upon.

Consent Must Be Legally Relevant

Section 87 should also be read with Section 90 IPC, which addressed circumstances in which consent was not such consent as contemplated by the IPC, including specified cases involving fear, misconception, unsoundness of mind, intoxication and age.

Section 87 and Section 88 IPC

Section 88 IPC separately dealt with acts not intended to cause death that were done in good faith for a person's benefit with consent. Section 87, by contrast, is framed around consent to harm or risk within its own limits concerning death and grievous hurt.

Current-Law Note

The Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024, subject to the notified exception concerning section 106(2). The corresponding current provision concerning an act not intended and not known to be likely to cause death or grievous hurt, done by consent, is Section 25 of the Bharatiya Nyaya Sanhita, 2023. This article is intentionally focused on Section 87 IPC and the legal position before implementation of the BNS.