Gopika Kalidas, a distinguished graduate from Alliance Law School, Alliance University, Bangalore. Read More
Introduction
The Bharatiya Nyaya Sanhita (BNS) is the Republic of India’s official criminal code. It went into effect on July 1, 2024, after being adopted by parliament in December 2023 to replace the Indian Penal Code (IPC), which dates back to British India. The BNS is a comprehensive piece of legislation that covers a wide variety of offenses against people, property, public order, and the state. The BNS is divided into chapters, each addressing a certain form of crime. For example, Chapter II discusses crimes affecting the human body, such as murder, assault, and kidnapping. Chapter III discusses property crimes such theft, robbery, and criminal trespass. Chapter IV addresses public order breaches such rioting and illegal assembly. Chapter V covers offenses against the state, such as sedition and treason.
The BNS also covers general principles in criminal law, such as mens rea (guilty mind) and actus reus (guilty deed). It also details the punishments that can be imposed for various offenses, including imprisonment, fines, and death. The BNS has been lambasted for being out of date and failing to accurately reflect current situations in India. However, it remains an important piece of legislation in the Indian criminal justice system.
This article will examine Chapter V of the BNS, which consolidates offenses against women and children that were formerly classified under four separate chapters of the IPC.
The BNS’s sexual offense regulations are similar to those in the IPC, with a few proposed changes. The Bill creates a new chapter titled ‘Offences Against Women and Children’ to handle sexual crimes. Similar offenses under the IPC are listed under the chapter ‘Offences Affecting the Human Body’. This reorganization suggests that the BNS exclusively acknowledges sexual offenses committed against women.
BNS Section 63: Rape
BNS Section 63 of the BNS is a key legislation that specifies the crime of rape in India. This section discusses the situations under which sexual intercourse may be deemed rape, as well as the consequences. This provision states that a person commits “rape” if:
- Penetrates their penis to whatever degree into a woman’s vagina, mouth, urethra, or anus, or forces her to do so with them or another person.
- Inserts an instrument or body part other than the penis into a woman’s vagina, urethra, or anus, or forces her to do so with them or another person.
- Any aspect of a woman’s anatomy is manipulated to facilitate penetration into her vagina, urethra, or anus, or she is coerced into doing so by them or another person.
The clause further stipulates that rape can occur under the following conditions:
- Against her will: If the lady has expressly stated her refusal to do the sexual act.
- Without her consent: If the lady has not expressly or implicitly consented to the sexual act.
- Under the influence of threat or force: If the woman is compelled into sexual intercourse by threats or force.
- Under the influence of intoxication: If the lady is inebriated or unconscious as a result of the offender or another person administering a stupefying drug and is unable to provide permission.
- Under false pretences or misrepresentation: If the woman is deceived into sexual intercourse through false pretences or misrepresentation.
- With or without her consent, when she is under eighteen years of age: When she is under the age of eighteen, sexual intercourse with her is deemed rape, whether with or without her permission.
- When she is unable to communicate consent: If the woman is unable to communicate consent due to mental disability or other reasons.
BNS Section 64: Punishment for Rape
The punishment for rape under BNS Section 63 is severe. The perpetrator may face harsh imprisonment ranging from ten years to life, a fine, or both. In certain cases, rape can result in significant harm or death, and the punishment might be death or life imprisonment. Nonetheless, whether a public official, a member of the armed forces, or an individual is raped, the harshness of the penalty increases. Few other points are:
- Rape offenders receive a minimum sentence of ten years in prison, which can be increased to life, as well as fines
- Enumerates certain situations, such as police officers, public officials, armed forces, or persons in positions of trust, with various penalties for each.
- Describes aggravating factors that lead to harsher sanctions, such as rape amid communal turmoil, on pregnant women, or on those who are unwilling to consent.
- Addresses the seriousness of repeated attacks by imposing a life sentence for rape against the same victim.
- Clarifies words like “armed forces,” “hospital,” and “police officer” to ensure proper interpretation.
- Covers rape by personnel or management in jails, hospitals, or women’s/children’s facilities, with a focus on accountability.
BNS Section 65: Punishment for Rape in Certain Cases
This clause aims to increase deterrence and ensure that particularly heinous acts of rape result in the most severe penalties. Section 65 of the BNS covers the penalty of rape in specific instances, stressing harsh penalties for assaults on women under the age of sixteen or twelve. The clause describes the harshness of the sentence, which includes at least twenty years of severe imprisonment, with the potential of life in prison or the death penalty. It also creates appropriate and reasonable punishments, with the revenues going to the victim’s medical bills and rehabilitation.
BNS Section 66: Punishment for Causing Death or Resulting in Persistent Vegetative State of Victim.
This section aims to ensure that the most severe penalties are given to the criminals who cause the greatest harm to their victims. If the rape victim dies or is put in a permanent vegetative state, the criminal faces the death penalty, life in prison, or at least twenty years of rigorous imprisonment.
BNS Section 67: Sexual Intercourse by Husband Upon His Wife During Separation.
BNS Section 67 may be applied to determine if a husband has sexually assaulted his wife if Legal separation occurs when a court ruling or mutual consent between the husband and wife establishes their separation. The wife has refused to have sexual intercourse with her husband and the husband and wife still reside in the same home despite their separation. A husband having sex with his divorced wife without her approval, as it recognizes the importance of marital consent. Respecting marital autonomy is crucial since violators face sentences of two to seven years in jail.
BNS Section 68: Sexual Intercourse by a Person in Authority
The perpetrator is someone in a position of power, whether a governmental official, company owner, teacher, or religious leader. The victim is unable to give free and informed consent due to the offender’s power. The perpetrator and the victim engage in sexual contact. If an offender uses their position or fiduciary relationship for sex, they risk fines and harsh prison terms ranging from five to 10 years.
BNS Section 69: Sexual Intercourse by Employing Deceitful Means, etc.
The topic of entering a sexual connection after lying to someone or employing dishonest methods is covered in this section. Ten years in jail and a fine are the punishments. Among the deceitful strategies include promises of marriage, advancement in the workplace, or employment. The use of any dishonest technique to make the victim think offender are someone else or that they are going to carry out a legal conduct. The offender poses as someone who is known to be the woman’s guardian or spouse and have a sexual relationship with the woman while pretending to be someone else.
BNS Section 70: Gang Rape
The term “gang rape” refers to rapes carried out by many accomplices. This covers circumstances where a number of people take part in the sexual assault either actively or passively. Due to the nature of group offenses, the law stipulates that anybody found guilty of gang rape faces a stringent minimum term of twenty years in prison, with the possibility of a life sentence or death penalty. The victim’s rehabilitation and medical costs are covered by the penalties. Regardless of the degree of their personal involvement, everyone involved in gang rape may be held accountable for the crime. The court may decide on the appropriate sentence by taking into account the victim’s effect. Statements from victims may include important details on the harm that the violation caused.
The court may mandate that the offender or offenders participate in rehabilitation programs as part of their sentence, even in situations when the punishment is harsh. In order to address underlying issues that could have led to the crime, counselling or therapy may be required.
BNS Section 71: Punishment for Repeat Offenders.
Someone who is convicted of certain sexual offenses on a frequent basis may be sentenced to life in prison or perhaps executed. The prosecution needs to show that the defendant has a history of rape convictions. This calls for evidence of the previous conviction, such as a court order or a certified copy of the verdict. The facts surrounding the prior rape offense may also be taken into account by the court when deciding on the appropriate penalty. For example, the court may be more inclined to impose a harsh sentence if the prior violation included really bad circumstances. The court has the power to mandate that the criminal participate in rehabilitation programs as part of their sentence, even in situations when the punishment is doubled. In order to address underlying issues that could have led to the crime, counselling or therapy may be required.
BNS Section 72: Disclosure of Identity of Victim of Certain Offences, etc.
Section 72 prohibits sharing a victim’s identification owing to its sensitive nature. Anyone convicted of these charges faces a fine and up to two years in jail. A few conditions apply, including written consent from the victim, involvement of the victim’s next of kin, and disclosures approved by the investigating police officer.
Conclusion
This restructure implies that sexual offenses against women are the only ones that the BNS will recognize. The Bill also proposes some modest adjustments to the rules governing rape of women under the age of eighteen. It aims to standardize how POCSO addresses young women who have been raped in groups and lists all of the current rape laws. Furthermore, neither homosexuality nor necrophilia are addressed under the Act. Under the new law, there would be no legal recourse for the families of victims of sexual abuse and murder, which were previously protected by crimes such as necrophilia. When live girls are sexually abused or exploited, the new Bill establishes appropriate legal measures. According to the BNS, rape against transgender people and men is not a separate offense. Men are definitely in a different position than women, since they do not desire to be protected against rape or sexual exploitation. These sections play a critical role in safeguarding persons against violations of their personal liberty. However, resolving the deficiencies in these parts is critical to ensuring successful implementation and justice for the victims.
Bibliography
- Bharatiya Nyaya Sanhita 2023, https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf.
- Bharatiya Nyaya Sanhita 2023, Substentive Analysis, https://p39ablog.com/wp-content/uploads/2023/08/Bharatiya-Nyaya-Sanhita-Bill-2023-Research-Brief.pdf.
- Correspondence Table and Comparison Summary of the Bharatiya Nyaya Sanhita 2023 (BNS) to Indian Penal Code 1860 (IPC), https://bprd.nic.in/uploads/pdf/COMPARISON.
- Critical Analysis of the Bharatiya Nyaya Sanhita Bill 2023 with Special Regard to Laws Concerning Rape and Unnatural Offences, https://maglaw.puchd.ac.in/index.php/maglaw/article/view/111/22.
