How do India’s new criminal laws deal with sexual offences?

From July 2nd, 2024, the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 were replaced by three new laws, the Bharatiya Nyay Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita 2023 and the Bharatiya Sakshya Adhiniyam, 2023, respectively.While the new laws are very similar to the earlier laws, they do bring in some significant differences that they bring in. A key aspect of the new criminal laws is the overhaul in the provisions related to sexual offences in India. 

In this Weekly, we discuss what these changes are and how they impact the citizens’ right to justice.

Promise to Marry

The Bharatiya Nyay Sanhita, 2023 (BNS) introduces the act of engaging in sexual intercourse with a woman with the false promise to marry as a criminal offence. The court can punish  a person convicted of this offence with jail time of up to 10 years or a fine or both under Section 69. 

Earlier, in the Indian Penal Code (IPC), there was no particular section for this offence. So, courts often resorted to Section 375 and Section 90 of the IPC. Section 375 stated that sexual intercourse with a woman when she consented to it because she believed that the perpetrator was her lawful husband would be regarded as rape. Section 90 negated any consent that is given under fear or misconception. 

The new law specifies that obtaining the consent of a woman to engage in sexual intercourse through deceitful means like the promise to marry or even promise of employment or other favours will make the perpetrator liable to criminal action. 

Gang Rape

Another important change in the new laws in the context of sexual offences is the change in the age of minor survivors of gang rape and the punishment for this offence. Under Section 70(2) of the BNS, if one or more persons rape a woman under the age of eighteen years, they can be punished with life imprisonment and a fine or with a death sentence. 

In the IPC, the offence of gang rape on women under the age of sixteen was penalised  with life imprisonment and a fine under Section 375(DA) and on women under the age of twelve with life imprisonment and a fine or a death sentence under Section 376(DB).  

Gender-neutral perpetrators 

The BNS allows a person of any gender to be charged with the offence of using criminal force to assault a woman or compelling her to disrobe and the offence of voyeurism, which is watching or capturing an image of a woman engaging in a private act. 

Earlier, only men could be prosecuted for these offences. However, the punishment for both offences which is three years of imprisonment and/or a fine remains the same.

Child trafficking

The IPC under Section 366A punished the ‘procuration of a minor girl’ for the purpose of illicit intercourse with jail time up to ten years and a fine. This has been changed in the BNS under Section 96 where if any child, irrespective of their gender, is procured for the purpose of illicit intercourse, the court can punish the perpetrator with ten years and a fine. 

What’s missing?

The BNS has also eliminated certain provisions from the IPC, including removal of Section 377 of the IPC. This section criminalised sexual relations against the ‘order of the nature’ but was read down by the Supreme Court in the Navtej Singh Johar and Ors. vs Union of India ( 2018) case to exempt consensual sexual relations between adults. However with the deletion of this section entirely, there is a gamp in the law for sexual offences against men and transgender persons. 

Currently, under Sections 114-117 of the BNS, the offence of ‘grievous hurt’, which entails voluntarily causing bodily harm, injury or even death to a person, can be applied to cases of sexual offences against men and transgender persons. This can lead to jail time up to seven years and a fine. Specifically transgender persons can also seek relief under Section 18 of the Transgender ( Protection of Rights) Act, 2019 which punishes any act that endangers the life and wellbeing of a transgender person including causing physical, sexual,  verbal, emotional or economic abuse with imprisonment up to two years and a fine.