Offences Against Women
Sections In BNS Perpetuate Stereotypes
Swapna Jha*
While making the law regarding offences against women gender-neutral, is a positive change, the omission of IPC’s Section 377 and marital rape as an offence disregards Article 14 of the Constitution.
Chapter V of the BNS specifically addresses offences against women and children. It includes Sections 63 to 99, covering various crimes such as rape, voyeurism, stalking, and other forms of sexual violence.
Definition of Rape: Glaring Omissions
Section 63, defining “rape” is verbatim to Section 375 of the IPC [as amended by the Criminal Law (Amendment) Act, 2013] wherein only a “man” is a perpetrator and a “woman” is a victim. However, the provision under Section 377 of IPC, which penalised the rape of an adult man, does not find a place in the BNS. Thus, it follows that BNS fails to penalise sexual violence against men. This change to India’s rape laws represents a blatant disregard for the fundamental right to equality enshrined in Article 14 of the Indian Constitution. This revision falls short on numerous counts, leaving a significant portion of the population vulnerable and perpetuating a dangerous misconception about rape.
Section 63 also provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape. Under Section 375 of IPC the age limit was 15 years. This provision clearly violates Articles 14 and 15 of the Constitution as it negates a married women’s consent to sex and perpetuates sexual and gender stereotypes about the subordination of a woman’s individuality. Section 64 (1) punishes the rape accused with 10 years to life imprisonment whereas Section 64(2) punishes aggravated forms of rape with 10 years to life imprisonment for the remainder of a person’s natural life.
Section 65 of BNS deals with punishment for rape and combines both age categories (under 12 and under 16) into a single section, simplifying the legal framework.
Under Section 66, the punishment for causing death or resulting in a persistent vegetative state of the victim is rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Section 69: Open to Misuse
Section 69 in the BNS is a new addition to the law. It pertains to sexual intercourse by employing deceitful means. It says: “–“Whoever by deceitful means or by making false promises to marry a woman without an intention of fulfilling the same, has sexual intercourse with her, such an act not amounting to rape shall be punished with imprisonment which may extend to 10 years and shall also be liable to fine.”
As per the Explanation given, “deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity
This provision needs deliberation as to how the law treats break-ups in relationships. If a woman decides to file a complaint against her former partner, will he/she be found guilty under Section 69? If yes, this would open the floodgates of complaints and increase the possibility of the Section being misused. It downplays the role of women in consenting to engage in such sexual relationships. Also, does the explanation to Section 69 mean that if a woman could be induced into sexual intercourse under a ‘false promise of employment or promotion’, the promiser must fulfil the promise and no offence is made out?
Section 69 is certainly chauvinistic and against the fundamental premise of the element of quid pro quo involved in acts that amount to “sexual harassment’ under the POSH Act.
Section 69 is certainly chauvinistic and against the fundamental premise of the element of quid pro quo involved in acts that amount to “sexual harassment’ under the POSH Act. This section is gender neutral as it uses the neutral term ‘whoever’ to describe an offender. Thus, a woman having sexual intercourse with another woman by making a false promise of employment or promotion could be punished under this provision.
Gender Neutral Sections
Section 354C of the IPC, which saw only men being offenders of voyeurism, has been changed in the BNS by incorporating gender neutrality. Section 77 of the BNS uses the term ‘whoever’ as opposed to the term ‘any man’ (as provided in the IPC) to refer to the perpetrator. This moderation makes a huge difference by protecting women from cases where men use women to commit voyeurism (capture images) as the IPC completely excluded the possibility of charging women for the said offence.
However, the following sexual offences remain unchanged wherein only a “man” is a perpetrator and a “woman” is a victim: Section 63 (rape), Section 74 (assault or use of criminal force for outraging the modesty of a woman), Section 75 (sexual harassment by physical advances, coloured remarks, showing pornography, demanding or requesting sexual favours), Section 76 (assault or use of criminal force with intent to disrobe), Section 78 (stalking), and Section 79 (word, gesture or act intended to insult modesty of a woman).
Sections 85 and 86, which deal with cruelty towards married women, are under challenge as the law is prone to be misused without any prescribed guidelines.
BNS has excluded adultery from the criminal code, thereby endorsing Joseph Shine v. Union of India, (2018)1 , which decriminalised adultery by declaring the provision as ultra vires the Constitution.
Sections on Offences Against Children
Section 95 of BNS provides that whoever hires, employs or engages any person below the age of 18 years to commit an offence, shall be punished with imprisonment of either description or fine provided for that offence as if the offence has been committed by such person himself. Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within this Section.
Under Section 99 (buying a minor for purposes of prostitution, etc.) minimum mandatory punishment is introduced as seven years, and the upper limit of imprisonment is extended up to 14 years in BNS, in place of 10 years in IPC. Words “any person under the age of eighteen years” are replaced by the word “child’.
In a nutshell, the laws appear to be a grave failure in the aspect of leaving the marital rape provision untouched despite several Supreme Court judgements emphasising the outdated character of the exception. It does not consider recommendations of the Justice Verma Committee (2013) making the offence of rape gender-neutral and including marital rape as an offence. Similarly, Section 69 is not just marred by the malicious risk of gross misuse but also reeks of impracticalities. The intention of the legislature may be good but it can turn out to be one of the most misused sections.
In a nutshell, the laws appear to be a grave failure in the aspect of leaving the marital rape provision untouched despite several Supreme Court judgements emphasising the outdated character of the exception.
References
- 1. 2018 2 SCC 189
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