This article is written by Utkarsh Singh, 4th Year B.A. LL.B. (Hons.) student, CMP Degree College, University of Allahabad.
The adoption of the Bharatiya Nyaya Sanhita, 2023 (BNS) is a turning point in criminal legal reforms in India, which replaces the colonial Indian Penal Code of 1860. In this article, an evaluation of the BNS from the perspective of gender justice will be done by examining its provisions about sexual offences, trafficking, rape, outraging modesty, acid attacks, and marital cruelty. Although the article highlights certain positive aspects of the BNS, it also identifies numerous gaps, such as a lack of a gender-neutral definition of rape, a marital rape exemption, and protection of the LGBTQ+ community.
Keywords
Bharatiya Nyaya Sanhita, 2023, Gender Justice, Sexual Offences, Marital Rape Exception, Human Trafficking.
INTRODUCTION
The Indian Penal Code (IPC), a product of the colonial era, has been in effect for more than 163 years as governing legislation for Indian criminal law. Formulated by the First Law Commission headed by Lord Macaulay, the IPC was subjected to intense criticism for its patriarchal assumptions, Eurocentric outlook, and insensitivity towards gender-based injuries. The need to transform Indian criminal laws into contemporary legislation led to the promulgation of the Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024 and replaced the IPC with immediate effect.
Gender justice, defined by protection from violence, non-discrimination, and access to justice under Articles 14, 15, and 21 of the Indian Constitution, forms a basic tenet of governance. The BNS serves as a basis for understanding whether Indian criminal law has progressed in achieving this or has simply perpetuated colonial concepts under a new name.
This article provides a systematic review of the relevant BNS laws in light of gender justice. It examines how the laws have evolved from the IPC, notes the positive progress made, and highlights the continuing deficiencies. This is done by referring to the constitutional approach as well as international legal instruments such as the CEDAW and the Beijing Platform for Action.
THE LEGISLATIVE FRAMEWORK: AN OVERVIEW
The BNS has 358 provisions divided into 20 chapters. The purpose behind the enactment, as mentioned in the Statement of Objects and Reasons, can be summarised as follows: to repeal outdated laws, judicial interpretation, and the advent of new types of crimes. In 2020, the Ministry of Home Affairs initiated consultations on criminal law reforms, which contributed to the introduction of the new criminal codes. which recommended reforms in gender-specific crimes, and some of these were incorporated into the enacted law.
Chapter V of the BNS consists of sections 63 to 99 and deals with offences against women and children. It incorporates and amends the laws present in Chapters XVI and XX of the IPC. Besides that, Chapter VII deals with offences against human trafficking, which is a serious issue considering that India is susceptible due to its position as a source, transit, and destination country for trafficking. The structural consolidation is commendable; however, consolidation does not necessarily guarantee adequacy.
SEXUAL OFFENCES: CONTINUITY AND REFORM
A. Rape: Section 63 BNS
As per Section 63 of the BNS, rape can be understood in the same manner as rape post-amendment of Section 375 of the Indian Penal Code, as per the Criminal Law (Amendment) Act, 2013 that followed in the wake of the Nirbhaya incident. Rape includes penetration via seven kinds of sexual acts, and the consent test is applied for the same. Consent has been defined as ‘unequivocal voluntary agreement, expressed either by words or otherwise’, and in Section 63, it is stated that ‘the lack of resistance on the part of a woman would not constitute consent in itself’.
The minimum sentence prescribed for rape remains the same and is ten years, rigorously imprisonment, and could extend to even lifelong imprisonment. In aggravated rape cases such as rape by a public servant, gang rape (under Section 70), and rape of a girl below the age of eighteen (under Section 65), there are enhanced punishments including even death sentences, as per the Criminal Law (Amendment) Act, 2018.
A glaring omission that has attracted much criticism is the lack of a provision for rape that applies equally to all genders. The BNS, similar to its earlier version, has defined rape strictly as a sexual crime committed by a man on a woman. Consequently, males, transgender individuals, and intersex people lack a criminal provision that could provide relief to them in accordance with the suggestions made in the 172nd Report of the Law Commission of India and the Verma Committee Report of 2013.
B. Marital Rape: The Perennial Immunity
Among the glaring deficiencies of gender justice in the BNS is the provision of the marital rape exception. Under Exception 2 to Section 63, it is not rape when sexual intercourse or sexual acts are committed by a man against his wife who is not below eighteen years of age. Exception 2 to Section 63 mirrors Exception 2 to Section 375 IPC, despite the observation by the Supreme Court in Independent Thought v. Union of India that criminalizing marital rape on a minor wife does not violate constitutional principles.
In the case of RIT Foundation v. Union of India, wherein the division bench of the Delhi High Court ruled on whether the exception to marital rape violated women’s constitutional rights, the opinion was divided, as one judge ruled in favour of declaring it unconstitutional, whereas the other maintained its constitutional validity. An appeal from this split decision has been filed in the Supreme Court. The persistence of the marital rape exception in the BNS preserves the Hale doctrine or the “irrevocable consent to marry” presumption, which has since been struck down in the UK, Canada, Australia, and other Commonwealth jurisdictions.
C. ACID ATTACKS — SECTIONS 124–125 BNS
Sections 124 and 125 of BNS deal with acid attack offences, similar to Sections 326A and 326B IPC introduced through the Criminal Law (Amendment) Act, 2013. Section 124 makes throwing or administering acid to cause grievous hurt punishable with at least ten years of rigorous imprisonment. On the other hand, Section 125 punishes anyone who tries to throw acid on another person with five to seven years of imprisonment.
Even though the legislation governing acid attacks in India is, in many ways, in conformity with what was envisaged in the Supreme Court judgment in Laxmi v. Union of India, the BNS could have done more in terms of making provisions for rehabilitative measures in the law, such as monetary compensation, provision for medical care, and employment opportunities.
D. HUMAN TRAFFICKING AND SEXUAL EXPLOITATION
Section 111 of the BNS deals with Organized Crime, whereas Section 143 provides an elaborate provision on Trafficking of Persons, comparable to Section 370 of the IPC. The definition of human trafficking under the BNS includes not only sexual exploitation and forced labour but also organ harvesting and surrogacy exploitation. This definition draws closer to the Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000), which is ratified by India.
The penalty for trafficking minors has been increased in Section 143(5) of the BNS to be rigorous imprisonment for a term not less than fourteen years, extendable up to life. Yet, there is one very important gap in the BNS, and that is that it does not criminalise the demand side of human trafficking, i.e., the clients of the victims. It needs to be emphasized here that demand-side criminalisation, as practised in the Nordic model, has been internationally acknowledged to be imperative to combat human trafficking.
E. OUTRAGING THE MODESTY OF A WOMAN: SECTION 74 BNS
Section 74 of BNS still includes the offence of outraging the modesty of a woman, in conformity with Section 354 IPC. While this modesty-based provision has been heavily criticized over the years due to its paternalistic approach, in which the victim’s dignity lies in her ‘modesty,’ instead of the integrity of her body and autonomy, it was not replaced despite a recommendation from the Justice Verma Committee.
Sexual harassment, voyeurism, and stalking have all received special mention in Sections 75 to 78 of BNS. While they have been incorporated under new amendments pursuant to the Criminal Law (Amendment) Act, 2013, it is worth noting that cyberstalking has also been added to Section 78 of theBNS, signifying the increasing overlap between technology and crimes against women. The punishment awarded for stalking, however, is surprisingly light up to three years in jail for a first offence.
F. CRUELTY IN MATRIMONY – SECTION 85 BNS
The equivalent provision of Section 498A IPC contained in Section 85 BNS deals with the crime of dowry related cruelty meted out by a husband or relatives of the husband on the wife. Three years imprisonment and a fine have been made. Cruelty has been defined to mean any wilful conduct which is likely to result in serious bodily harm or danger to life, limb, and health, as well as harassment relating to dowry. A new provision contained in Section 86 of the Act defines cruelty to expressly include mental cruelty, a concept which had already been judicially recognised before in Vijayalakshmi v. Kartik.
On a progressive front, the offence of cruelty by a wife’s family relating to dowry has been introduced. The critics of the Bill point out the inadequacy of enforcing machinery and how the mandatory arrest clause contained in Section 498A IPC (which had been subjected to extensive Supreme Court review in Arnesh Kumar v. State of Bihar), has been retained unaltered.
CONSTITUTIONAL OBEDIENCE AND INTERNATIONAL RESPONSIBILITIES
The BNS is to be analysed not only in relation to its preceding statute but also in relation to the constitutional obligations. Articles 14, 15, and 21 collectively bind the parliament to enact criminal law that equally protects all citizens, prohibits discrimination based on gender, and ensures equality and protection of life and liberty with respect and dignity. The apex court in Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India has extended the scope of constitutional morality over social morality, and such a concept should guide gender-sensitive criminal legislation.
Under its ratification of the CEDAW in 1993, India was legally obligated to undertake all necessary measures towards eradicating any form of discrimination against women, especially in matters of law. The Special Rapporteur for the United Nations’ Working Group on Violence against Women has time and again recommended India to criminalize marital rape, repeal gender exclusivity from sexual offense laws, and embrace a survivor-oriented approach. The inclusion of the marital rape exception and the failure to include gender-neutral rape provisions render the BNS has been criticised for not fully aligning with evolving international standards.
CRITICAL ASSESSMENT & SUGGESTIONS FOR REFORMS
While the BNS constitutes an incomplete attempt towards achieving gender justice in the sphere of Indian criminal laws, the consolidation of women-specific offences, redefinition of consent, stricter penalties for aggravated sexual offences, and recognition of cyberstalking are positive steps. However, there are multiple deficiencies in the said legislation which render it ineffective in bringing a revolution in the field of sexual offences.
These include the need to abrogate the exception of marital rape on constitutional grounds, the need to incorporate a gender-neutral definition of rape in order to protect men, transgenders, and non-binary persons against sexual assault, introduction of laws pertaining to the demand side accountability for offences of trafficking, changing the terminology of modesty in sexual crimes with a rights-based approach to the protection of sexual autonomy, and lastly, the glaring omission of legislative measures for the protection of LGBTQ+ persons from hate crimes and sexual violence in the BNS.
CONCLUSION
However, it would be safe to conclude that the Bharatiya Nyaya Sanhita, 2023 represents an incremental transformation of Indian criminal law regime rather than a transformative one. It improves upon certain aspects of gender justice by incorporating changes to address them. However, it reinforces patriarchal attitudes towards women with a marital rape exception provision, definition of rape that is limited to a woman and outdated modesty-centric language. True gender justice under the ambit of criminal law is dependent not just on strong substantive laws but also on survivor-centered procedures and investments in legal awareness.
Legislative intervention is important but insufficient for achieving gender justice. As the BNS goes through judicial and legislative scrutiny, it is vital that the principles of feminist jurisprudence, constitutional morality, and international human rights obligations guide its interpretation and implementation. It is meaningless for the ethos and aspirations expressed in the preamble of BNS to represent all of India, without specifically referring to women and gender diverse persons of the country.
