Analysis

Analysing the new offences, it can be noted that certain Sections have been merged in the BNS. Section 376 of the IPC specifies the punishment for rape, and Section 376D deals with gang rape. The punishment for gang rape on a woman under 16 years and 12 years of age which is contained in Sections 376DA and 376DB of IPC has been merged in Sections 70(1) and 70(2) of BNS with the punishments being enhanced. Under the new law, the punishment for gang rape of a woman is 20 years which may extend to life imprisonment and with a fine reasonable enough to meet the medical expenses and the rehabilitation of the victim. Furthermore, Section 70(2) of BNS now stipulates that the punishment applicable for gang rape of a woman under the age of 18 years will be imprisonment for life, and a fine or death.

Thus, it is evident that the new Act has broadly applied the age of 18 years as the threshold for determining punishment for gang rape. It can be seen that the new laws have also increased protection for women when it comes to procedural changes as well. The relevant provision is Section 176(1) of BNSS, which states that in order to provide more protection to the victim and ensure clarity in the investigation related to an offence of rape, the statement of the victim shall be recorded through audio-video means by police. The second relevant change in this regard is Section 183(6)(a) of BNSS which stipulates that for certain offences against a woman, statements of the victim are to be recorded, as far as practicable, by a woman Magistrate and in her absence a Male magistrate in the presence of a woman thus making the procedural formality more comfortable for women.

Moreover, Section 179 of BNSS stipulates and grants women an exemption from attending the police station and makes it optional to attend if she is willing to.

The Bharatiya Nyaya Sanhita has introduced two new offences with respect to women and children. Section 69 stipulates that sexual intercourse by employing deceitful means or making promises of marriage without the intention to fulfil the same shall be an offence punishable with imprisonment for a term of ten years. The second new offence introduced is Section 95 which makes hiring and employing a child to commit an offence punishable with imprisonment for a term ranging from three to ten years. Additionally, Section 137 of the BNS proposes to make changes to Section 361 of the IPC, which makes the kidnapping of girls below the age of 18 years and the kidnapping of boys below the age of 16 years illegal. In the present Act, Section 137 of BNS proposes to make kidnapping of all children, irrespective of gender, an offence as per the official explanation. Therefore, it can be seen that it is a step towards gender neutrality and by removing the words female and male, the legislation has instead used the word ‘child’ which is a very gender-neutral term.

The most pivotal change brought about by the new Act is the fact that it has made use of gender-neutral terminology for perpetrators and victims thereby signifying that the new laws are in parity with the change in society and the Justice Verma Committee Report, 2013. Hence, when the new laws removed the word ‘man’ from provisions pertaining to offences of voyeurism (Section 77 of BNS) and assault and use of criminal force (Section 76 of BNS) and replaced it with the word ‘whoever’ it was a significant change towards gender neutrality thus broadening the scope of the Act and the purview of the term ‘perpetrator’. Moreover, keeping at par with the Verma Committee Report, it has also broadened the definition of the term ‘victim’ and has included the phrase ‘girl or boy’ in Section 141 of BNS which deals with the offence of importation of a girl or boy from a foreign country which earlier in the IPC only included ‘girl’ thereby again proving that the new laws aim at being gender neutral. 

The consequent procedural formality has also been simplified and broadened with the introduction of the provision of Zero FIR under Section 173(1) of BNSS which allows the police officer who has received any information pertaining to the commission of a cognizable offence outside the limits of a police station to enter such information in the books to be kept by such officer. Therefore, it can be seen that the FIR procedure has been made more victim-centric for women.

A criticism that the new BNS attracts is the fact that it still retains the colonial treatment of rape within marriage, i.e., marital rape. The only minor change brought about is the fact that the age has been increased from 15 years to 18 years but then sexual intercourse by a man with his wife not being under 18 is not rape. Therefore, it can be noted that the consent of the woman is still a grey area and the same is not being considered. Marital rape as a concept was revisited in the case of Independent Thought v. Union of India[2], where the Supreme Court revisited some of the constitutional provisions according to which marital rape as an exception infringes the constitutional rights of a married woman aged between 15 and 18 years. Furthermore, in the case of Nimeshbhai Bharat Bhai Desai v. State of Gujarat[3], the Gujarat High Court noted that the notion of ‘implied consent’ in marriage should be rooted out and the law should uphold the bodily autonomy of all women, irrespective of their marital status. In the case of Anuja Kapur v. Union of India[4], guidelines were sought on marital rape but the petition was rejected and the Court observed the formulation of laws is under the domain of the legislature and not the judiciary and Courts are more concerned with the interpretation of the law. Therefore, it can be clearly seen that the Court has stated that any change in relation to marital rape has to be made by the legislature and when in 2023 the legislature actually had the opportunity to introduce changes and revise the new laws, the legislature failed to commemorate the suggestions introduced in this case. As a result, though marital rape infringes upon the rights of women under Article 21, it is not an offence.

Even in May 2022, the Delhi High Court delivered a split judgment in the case of RIT Foundation v. Union of India[5], wherein Justice Rajiv Shakdher struck down marital rape exception as unconstitutional due to its denial of bodily autonomy and agency of married women, while Justice C Hari Shankar gave a very contradictory judgment stating that it is conceded that consent is given for sexual intercourse though it may not exist and it is not up to the State to interfere with privacy within a marital relationship. Notably, the marital rape issue is currently before the Supreme Court and the matter is expected to be taken up on August 13.

On one hand when the substantive law provides provisions which will allow women to be more empowered alongside the challenges that women have to face in society, on the other hand, the procedural law takes away the good that the substantive provisions have done as can be seen clearly in Section 173(3) of BNSS which provides discretionary power to the police to conduct a preliminary inquiry to ascertain whether or not a prima facie case can be made out against the accused for all the offences punishable with three to seven years which is basically the punishment for custodial rape. Therefore, it can be seen that by giving the police discretionary powers, the good that was done by the substantive provisions is lost as the police might as well refuse to file a case citing the grounds that a prima facie case has not been made out thus denying the woman justice due to a simple procedural reason.

Conclusion

Analysing the resources and authorities available, the author has come to the conclusion that the three new criminal laws have kept their promise when it comes to doing away with the colonial era laws which tend to stipulate different punishments based on the age group and gender and take a leap towards gender neutrality by using terms like ‘child’. To conclude, the procedural provisions have also been liberalised in favour of women. In all, the new criminal acts are a welcome change for the society where women and children are the most vulnerable ones and the new laws safeguard their interests harmoniously.