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ROADMAP TO RAPE LAWS: A COMPARATIVE ANALYSIS OF THE INDIAN PENAL CODE, 1860 AND THE BHARTIYA NYAYA SANHITA, 2023

Introduction

In India, women are esteemed with the highest reverence, with comparisons being drawn between them and divine figures like Ma Sarasvati, Ma Laxmi, and Ma Durga. The term “Ma” underscores their role as providers and protectors, providing them with a maternal pedestal. Despite this, a sombre situation exists for women in our country. In the year 2022, a total of thirty-one thousand rape cases were registered throughout the country, which likely is a mere fraction of the actual cases that go unreported. Women face issues such as familiar pressure, shame, or just a lack of knowledge and awareness amongst them. The offence of rape is brutal and punishable under the Indian Penal Code, 1860, and now the Bhartiya Nyaya Sanhita, 2023 as well.    

The Bhartiya Nyaya Sanhita

In the August 2023 Monsoon Parliament session, the Ministry of Home Affairs introduced three new criminal bills. These were the Bhartiya Nyaya Sanhita, the Bhartiya Nagarik Suraksha Sanhita and Bhartiya Sakshaya Act. These bills are set to replace the already existing Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, respectively. These new bills aim to remove the British-given laws in India and reform entirely India’s Criminal Procedure of conduct. The following bills are to be enacted from 1st July 2024.[1]

The Bharatiya Nyaya Sanhita, 2023, is set to replace the India Penal Code, 1860. This bill has the following features[2]

  • The Bharatiya Nyaya Sanhita, 2023 (hereinafter BNS) has streamlined various sections of the Indian Penal Code, 1860, that previously existed haphazardly. The sections have been reduced from 511 to 368 under the BNS.
  • Offences against women and children have been rationalized into one chapter (Chapter V) and are now meant to attract graver punishments.
  • Various offences such as terrorism[3], subversive activities, and armed rebellion[4] have now been added to be penalized under the BNS, 2023.
  • In addition, specific provisions have also been removed, which include section 306, which demanded punishment for an “attempt to suicide. The Mental Health Act[5] would now be brought in line. The provision of Sedition[6] was being misused under the Indian Penal Code and has, therefore, been removed.

Rape Laws Under Indian Penal Code, 1860- 300

The concept of Rape is covered under Section 375[7] and Section 376[8] of the Indian Penal Code, 1860. It defines ‘rape’ by a man if he has sexual intercourse with a woman without her consent or against her will by coercion, misrepresentation, or fraud. This section has two exceptions to it. One is that medical procedures or interventions do not constitute rape. The other exception is that sexual acts by a man on his wife provided the wife is not eighteen years or below in age, do not constitute rape. This concept further illuminates the concept of marital rape. 

Analyzing the essential clauses to an act to be called rape under Section 375[9] entails-

  • Against her will: If a woman has sexual intercourse against her will but under the pretence of a false promise of marriage, the act is said to constitute rape. The same was held in Deelip Singh v. State of Bihar,[10] wherein the woman was firstly against the act; however, when promised marriage, she consented to the same.
  • Without consent: If a man engages in sexual activities with a woman without her consent, the same is said to constitute rape unless it falls in the purview of the various exceptions to this Section.
  • Consent by fraud: the consent in activities of a sexual nature needs to be free, i.e., it shouldn’t arise from any coercion, misrepresentation, or fraud. All the above mentioned would cause for a claim of rape against the man.

This definition of Rape constituted a sentence for guilty personnel of life imprisonment of not less than ten years in prison, which may be extended to life imprisonment[11]. Individuals found guilty on accounts of Rape may also be liable for a fine. 

Rape Laws Under Bhartiya Nyaya Sanhita- 300

Under the Bhartiya Nyaya Sanhita, 2023, offences against women and children are under a consolidated Chapter V. The provisions regarding rape are under Section 63[12] to Section 70[13]. Additionally, Sections 74[14] to Section 79[15] talk about actions that might violate the modesty of women, thereby including the use of criminal force[16], sexual harassment[17], voyeurism[18], and more.

The Bhartiya Nyaya Sanhita provides a more comprehensive jurisdiction over various crimes related to women and children. It ensures the provision of justice to women by increasing the term periods of punishment and rationalizing the process. Under the BNS, 2023, the rape of a minor[19] attracts a punishment of at least 20 years. Various activities, such as gang rapes[20], have been defined, and punishments for the same have been set to include up to 20 years to life in prison and also fines. The concepts of aggravated rape and sexual assaults[21] are also covered under the BNS, 2023, and have sentences of ten years and seven years, respectively. However, one of its biggest criticisms is the continuing validation of marital rape, as no new provision regarding the same was made. Rape by a man on his wife during the period of separation has been included as a crime; however, marital rape continues to be legal in our county, and there is no defence that a woman might procure against this. It is extremely saddening to see how there is so much development in society regarding the safety of women. Still, married women have not been provided any safety against their husbands. 

Personal Perspective

Rape is a grave offence. It not only takes away from a woman’s innocence, her choice of autonomy over her body, or even her life, but it also creates a deep-seated scar in society and its purview of women. A woman raped is blamed and scrutinized by the public, judging her for her decisions regarding her clothing, her attitude, and even the people she might interact with.

In a society so wretched, the decision of the Government to increase provisions regarding the safety of women and children under the BNS, 2023 appears as a ray of hope. It reiterates the government’s support for women in society. The implementation of stricter rape laws helps serve as a deterrent in society against people who would even think to commit such heinous crimes.  

Conclusion

The three new criminal bills introduced constitute a significant highlight of the year 2023. They aim to reform India out of its colonizing policies and to implement laws and regulations in compliance with the morals that our country, India, stands for today. Implementing these new criminal bills brought about a severe change in the Criminal Procedure in society and, therefore, should be tackled with great diplomacy. Keeping away from the reforms made by the Britishers while also following certain policies for the nation’s benefit is tricky to deal with.  

The enactment of the Bhartiya Nyaya Sanhita acts as a moment of watershed in Indian History. It proves how our country is finally free of the colonization by the British that lasted for about two hundred years and left a profound, scarred impact on society. The provision for stricter laws regarding the safety of women and children under Chapter V of the BNS, 2023, assists in creating awareness among society and helps provide accessible justice to women, ushering in a new era of empowerment and protection.    

Author(s) Name: Girisha Sharma (Symbiosis Law School, Pune)

Reference(s):

[1] Hindustan Times News Desk ‘3 criminal laws replacing IPC, CrPC, Evidence Act to come into effect from July 1’ (hindustantimes.com, February 24, 2024) <https://www.hindustantimes.com/india-news/three-new-criminal-laws-to-come-into-effect-from-july-1-101708765833972.html> accessed 24th February 2024.

[2] “Key Highlights of the three new criminal laws introduced in 2023” [2023] SCC OnLine Blog OpEd 161 <https://www.scconline.com/Members/NoteView.aspx?enc=SlRYVC05MDAxODUxNzc0JiYmJiY0MCYmJiYmU2VhcmNoJiYmJiZmdWxsc2NyZWVuJiYmJiZ0cnVlJiYmJiYiQmhhcmF0aXlhIE55YXlhIFNhbmhpdGEiJiYmJiZBbGxXb3JkcyYmJiYmZ1NlYXJjaCYmJiYmZmFsc2U>accessed 24th February 2024

[3] Bhartiya Nyaya Sanhita, 2023 (s. 111)

[4] Bhartiya Nyaya Sanhita, 2023 (s. 152)

[5] Mental Health Act, 2017

[6] Indian Penal Code, 1860 (s. 124A)

[7] Indian Penal Code (s. 375)

[8] Indian Penal Code (s. 376)

[9] Penal Code (n. 7)

[10]Deelip Singh @ Deelip Kumar v. State of Bihar [2005] 1 AIR 203

[11] Penal Code (n. 8)

[12] Bhartiya Nyaya Sanhita, 2023 (s. 63)

[13] Bhartiya Nyaya Sanhita, 2023 (s. 70)

[14] Bhartiya Nyaya Sanhita, 2023 ( s. 74)

[15] Bhartiya Nyaya Sanhita, 2023 (s. 79)

[16] Bhartiya Nyaya Sanhita, 2023 (s. 75)

[17] Sanhita, 2023 (n. 14)

[18] Bhartiya Nyaya Sanhita, 2023 (s. 76)

[19] Bhartiya Nyaya Sanhita, 2023 (s. 65)

[20] Bhartiya Nyaya Sanhita, 2023 (s. 70)

[21] Sanhita, 2023 (n. 14)