by Babra Wani
SRINAGAR: With the 163-year-old colonial-era Indian Penal Code (IPC) finally getting a makeover under three bills that the parliament passed, the Bharatiya Nyaya Sanhita (BNS) has changed the crime classification and the punishments they deserve. Sections related to man-woman relationships and the crimes against women have also witnessed certain key shifts.
Unlike IPC, all the Offences against Women and Child have been aggregated in one chapter to deal with sexual offences against women and children very strictly. While some actions seen as crime by the IPC have been dropped in the BNS, the new penal code has added certain actions as crimes, given the fact that the society has evolved and the modern technology has added new tensions to the life.
Marital Rape: Section 63 of BNS has made sexual intercourse with wife as ‘marital rape’ if her age is below 18 years. Under IPC, the age of wife to not to constitute rape was “fifteen years”. It is now an offence to have a wife who is below 18 years of age.
BNS treats all victims below the age of 18 years as children. Rape and gang rape of women and children carry distinct penalties. However, the criterion for the victim’s minority varies depending on the type of rape and, thus, so does the punishment. The severity of the punishment varies for gang rape depending on whether the victim is older or less than 18. But depending on whether the victim of rape is less than 12, older than 16, or older than 16, the punishment varies. The Protection of Children from Sexual Offences Act, 2012, which defines minors as anybody under the age of 18, is in conflict with this.
False Marriage Promise: This bill also criminalises “sexual intercourse with a woman by deceitful means or making false promises.” It is new offence. Under section 69, a man who uses deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and has physical relation with her, is a punishable offence that can carry a fine a decade long jail term.
“Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, 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,” the provision reads. The “deceitful means” shall include the false promise of employment or promotion, inducement, or marring after suppressing identity. It was not an offence under IPC.
Rape carries a decade long rigorous imprisonment and fine. In case rapist is a government official or “in a position of trust or authority” towards the victim, he can get a decade long jail term that can extend till the last breath of his life. It is 20 years jail term if the victim is below 16 years of age.
A husband can go to jail for seven years if he resorts to sexual intercourse upon his wife during separation.
Under the BNS printing or publishing any matter in relation to any proceeding before a Court with respect to offence relating to rape, sexual intercourse by husband upon his wife during separation, sexual intercourse by person in authority, sexual intercourse by employing deceitful means, etc, gang rape, without the previous permission of such court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Voyeurism: Under the new penal code, voyeurism will carry not less than a year long jail term which may extend to three years and fine. Repeat offenders can go to jail for seven years.
Stalking: The BNS has recommended a three year jail term for offence of stalking. The punishment can include a fine as well. Even uttering any word or making any gesture intended to insult the modesty of a woman can have three year jail term.
Adultery: Under Section 497, adultery was an offence but in these cases the men would be prosecuted unlike women, being treated as victim. The Supreme Court had termed it gender discriminatory and struck it down. A Parliamentary Panel had suggested the adultery should survive as a cognisable offence but made gender neutral asserting both men and women could be prosecuted. However, the BNS dropped it as a cognisable offence.
Unnatural Sex: Section 377 was taking care of unnatural sex, which was against the order of the nature. The BNS makes no mention of it as an offence. A 5-judge bench of the Supreme Court had partially struck down IPC’s Section 377, which criminalised consensual carnal intercourse. Forced intercourse with an adult male was an offence, and bestiality, an offence completely deleted by the BNS.
Transgender: Under BNS, Section 10, “gender” has been redefined as the pronoun “he” and its derivatives are used of any person, whether male, female or transgender.
Gender Neutrality: In all the section related to rape, woman continues to be a victim. However, the BNS has tweaked sections dealing with children, to bring gender neutrality. The offences dealing with procuration of a girl (for “illicit intercourse”, 366A of the IPC) is now gender neutral. For adults, the offence of outraging the modesty of women (IPC 354A) and voyeurism (354C) now has gender neutrality. Now even women can also be booked under the law.
Attempt to Suicide: IPC’s Section 309 envisaged punishment for attempted suicide. The same is missing in BNS. In BNS, under Section 226, the attempt to commit suicide to compel or restrain the exercise of lawful power, punishable with simple imprisonment for a term that may extend to one year, or with a fine, or with both, or with community service. This gives rise to “community service” emerging as a form of punishment. It is mentioned in Section 4, as well, though the service has not been defined in detail.
Death by Negligence: A death by negligence under IPC 304A carried a punishment of up to five years. Under BNS Section 106, a special concession has been extended to doctors. Their negligence, if it leads to death, has been reduced to two years of imprisonment.
