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Section 88 IPC: Good Faith Act for a Person's Benefit

Section 88 of the Indian Penal Code, 1860 provided a general exception for certain acts done in good faith for a person's benefit with that person's express or implied consent, provided the act was not intended to cause death.

Legal position covered: This article explains Section 88 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 88 of the Indian Penal Code, 1860

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.

Meaning and Scope of Section 88 IPC

Section 88 formed part of Chapter IV of the IPC dealing with General Exceptions. It addressed situations in which an act may cause harm, may be intended to cause harm, or may be known to be likely to cause harm, but is done in good faith for the benefit of the person who has consented to suffer that harm or take its risk.

The central statutory limitation is that the act must not be intended to cause death. The provision therefore distinguishes an intention to cause death from knowledge that an act may be likely to cause death.

Essential Requirements of Section 88 IPC

Meaning of Good Faith Under the IPC

Section 52 IPC provided that nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. Accordingly, good faith under Section 88 required more than a merely asserted good intention; the IPC definition made due care and attention relevant to the statutory requirement.

The Act Must Be for the Person's Benefit

Section 88 expressly required the act to be done for the benefit of the person who gives consent. The requirement of benefit operates together with good faith and consent. The statutory illustration uses medical treatment to demonstrate this principle: the surgeon acts for the patient's benefit despite knowing that the operation carries a serious risk.

Express or Implied Consent

The provision expressly recognized consent that is either express or implied. The relevant person must consent to suffer the harm or to take the risk of that harm. Whether legally relevant consent exists depends on the circumstances and must also be considered with the IPC provisions governing consent.

Intention to Cause Death Is Outside Section 88

Critical limitation: Section 88 applies only where the act is not intended to cause death. The surgeon illustration shows that knowledge that an operation is likely to cause death is not the same as an intention to cause death. The surgeon knows of the risk but does not intend the patient's death and acts in good faith for the patient's benefit with consent.

Harm May Be Caused, Intended or Known to Be Likely

The statutory language is wider than an exception confined to accidental harm. Subject to its requirements, Section 88 expressly refers to harm that the act may cause, harm intended by the doer, and harm known by the doer to be likely. The protection nevertheless depends on the absence of an intention to cause death, good faith, benefit and consent.

Medical Treatment Illustration

The statutory illustration is particularly useful in explaining the section. A surgeon performs an operation for Z's benefit and with Z's consent. Although the surgeon knows that the operation is likely to cause Z's death, the surgeon does not intend death and acts in good faith for Z's benefit. On those stated facts, the illustration says that no offence is committed.

Section 88 and Section 87 IPC

Section 87 IPC dealt with consent to certain harm or risk where death or grievous hurt was neither intended nor known to be likely, and expressly referred to a consenting person above eighteen years of age. Section 88 is framed differently: it concerns an act done in good faith for the consenting person's benefit and excludes an intention to cause death.

Section 88 and Section 90 IPC

Consent under Section 88 should be read with Section 90 IPC, which addressed circumstances in which consent was not such consent as contemplated by the IPC, including specified situations involving fear, misconception, unsoundness of mind, intoxication and age.

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 to cause death, done by consent in good faith for a person's benefit, is Section 26 of the Bharatiya Nyaya Sanhita, 2023. This article is intentionally focused on Section 88 IPC and the legal position before implementation of the BNS.