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The author of this blog is Arush Bharadwaj, he is a second year law student at School of legal studies, Central University of Kashmir.
“These laws signify a watershed moment for our society because no law affects the day-today conduct of our society like the criminal law”.
Introduction
In a landmark development, the legal framework governing crimes against women and children in India underwent a transformative overhaul with the enactment of the Bharatiya Nyaya Sanhita (BNS). Chapter V of this revolutionary legislation represents a paradigm shift from the antiquated provisions of the colonial-era Indian Penal Code (IPC) to a more nuanced and victim-centric approach to justice. The passage of the BNS marked the culmination of extensive legislative efforts aimed at modernizing India's criminal justice system. Rooted in the recognition of the evolving nature of crime and the need for responsive legal frameworks, Chapter V stands as a testament to India's commitment to upholding the rights and dignity of its citizens, particularly women and children. With a focus on consolidating and codifying offenses against women and children, Chapter V sets a new standard for legal redressal in matters of gender-based violence and exploitation. This article offers a comprehensive analysis of Chapter V of the BNS, highlighting its key features, implications, and broader societal impact.
Offences Against Women and Children
The new BNS adds Chapter V named “Of Offences Against Women and Children of Sexual Offences”. All the offences relating to women and children have been placed under one chapter at the beginning of the Code, which was earlier spread under various chapters and parts. This Chapter V ranges from Sec.63 to Sec.99 of the BNS Act.
Chapter V of the BNS seeks to substitute offences affecting the human body, under Chapter XVI of the IPC. While ‘marital rape’ has not been defined and/or categorized as an offence in the BNS, two new sections have been added namely:
Sexual intercourse by employing deceitful means, or by making a promise to marry a woman without any intention of fulfilling the same with a punishment of imprisonment for up to ten years, and a fine. In essence, this section has been introduced with an intent to curb the various instances of ‘false promise to marry’.
Section 70(2): Gang rape of a woman under eighteen years of age carrying a punishment of imprisonment for life, i.e., imprisonment for the remainder of that person’s natural life, and with fine, or death.
Provisions in New Criminal Laws Concerning Sexual Offences
New provision: Section 69: Sexual Intercourse by employing Deceitful Means etc.:
Definition of “Deceitful Means”:
Section 69 of Bharatiya Nyaya Sanhita: Sexual intercourse by employing deceitful means Whoever, by deceitful means or making by a promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation- “deceitful means” shall include the false promise of employment or promotion, inducement, or marrying after suppressing identity.
New provision: Section 70: Gang Rape:
Removal of Age-Based Parameters: The law now treats all cases of gang rape with equal severity, irrespective of the victim’s age.
Death sentence was provided under section 376DB of IPC for gang rape of woman under 12 years of age. No death penalty was provided for gang rape of woman aged below 16 years but above 12 years in section 376DA. Now, section 70(2) of BNS provides for death penalty for gangrape of woman under 18 years of age. It renumbers existing rape provisions and harmonises the treatment of gang rape of minor women with the POCSO.
Stringent Punishments: Offenders can face life imprisonment or even the death penalty for gang rape. The rationale behind such stringent penalties is emphasizing the gravity of the crime and the need for a strong deterrent.
Just and Reasonable Fines: Any fines imposed are directed toward victim rehabilitation and medical expenses. Fines are intended to serve a just and reasonable purpose, aligning with victim-centric principles.
New provision: Section 82 (vs. IPC Section 494): Marrying Again During Lifetime of Husband or Wife:
Marrying again during the spouse’s lifetime is considered an offence. Exceptions exist for cases where the previous marriage has been declared void or in situations of absence for the space of seven years. Penalties: Offenders may face imprisonment for up to seven years and also a fine. In case of deliberate concealment of the offence from the person with whom the subsequent marriage is contracted, the punishment is imprisonment up to 10 years and a fine. These penalties are in place to discourage bigamy and uphold the sanctity of marital relationships.
New provision: Section 95: Hiring, Employing, or Engaging a Child to Commit an Offence:
The act of hiring, employing, or engaging a child in various criminal activities is covered under this section. The provision extends to activities such as sexual exploitation or pornography, emphasizing its broad applicability.
Penalties: Imprisonment for not less than three years, extendable to ten years, and fines. The severity of punishment is to discourage individuals and groups from involving children in criminal activities.
Additional important changes
Apart from the above new changes in BNS compared to IPC, there are few important changes in the provisions which have made the punishments stringent and made gender-neutral.
Section 64 (1) punishes rape accused with ten years to life imprisonment whereas section 64(2) punishes aggravated forms of rape with ten years to life imprisonment for the remainder of a person’s natural life.
Another significant change is that the age of consent for a married woman under the definition of rape (Section 63 BNS and s. 375 IPC) has been increased from 15 to 18 years. Exception 2 to s. 375 IPC provides that sexual intercourse between a man and his own wife, wife not being under the age of 15, is not rape. Section 63 of the BNS retains the marital rape exception.
Section 75 BNS: This section defines the offense of sexual harassment committed by a man, which includes physical contact with unwelcome and explicit sexual overtures, demanding sexual favors, showing pornography against the woman’s will, and making sexually colored remarks. The punishment for committing such offenses varies, with imprisonment for up to three years, fine, or both.
Section 77 BNS: This section deals with the act of watching, capturing, or disseminating private images of a woman without her consent. The term “private act” is defined, and the punishment for the first conviction includes imprisonment for not less than one year and may extend to three years, along with a fine. Subsequent convictions carry a higher penalty of imprisonment for not less than three years and up to seven years, along with a fine.
Section 78 BNS: This section addresses the offense of stalking committed by a man, involving repeated attempts to foster personal interaction with a woman despite clear disinterest or monitoring her electronic communications. Stalking is punishable with imprisonment for up to three years and a fine for the first conviction, and for subsequent convictions, the imprisonment term may extend to five years, along with a fine. Exceptions are provided if the conduct is for preventing crime, complying with the law, or is deemed reasonable and justified in particular circumstances.
Section 79 BNS: This section pertains to intending to insult the modesty of a woman through words, sounds, gestures, or exhibiting objects with the intention that they be seen or heard by the woman. The punishment for this offense includes simple imprisonment for up to three years and a fine. The section also covers intrusions upon the privacy of a woman.
The new provision in Section 75(Sexual Harassment), defining the offence of sexual harassment and explained the acts constituting sexual harassment and the corresponding penalties.
BNS introduced gender-neutral provisions related to assault, use of criminal force, and voyeurism in Sections 76 and 77(voyeurism).
Section 96: Changes to Section 366A of IPC: The BNS replaced the word “minor girl” with “child” in Section 96 to cover both male and female children below 18 years.
Conclusion
This article provides a brief overview of laws related to offences against women and child in the new law, the Bharatiya Nyaya Sanhita, 2023. As per new law, an offence of rape is said to be committed if a man with or without consent commits rape of a woman under 18 years of age which was 15 years in the Indian Penal Code, 1860. Also, the BNS, 2023 defines punishment for rape of women under 12 years and 16 years into a single section that is Section 65. Overall, the Bharatiya Nyaya Sanhita, 2023 ensures to protect and safeguard the lives of Indian citizens as well as improves fairness and transparency in the legal process.
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