On 11th August, the Minister of Home Affairs introduced 3 new bills in the in the Lok Sabha– the Bharatiya Nyaya Sanhita Bill, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (BNSS) and Bharatiya Sakshya Bill, 2023 that seek to repeal and replace the Indian Penal Code, 1860 (IPC), Code of Criminal Procedure, 1973 (CrPC) and Indian Evidence Act, 1872 (IEA) respectively. In this Weekly, let’s take a look at some changes the BNS brings to the IPC.
Section 497 of the Indian Penal Code deals with adultery. This crime targets men who had sexual intercourse (not amounting to rape) with a woman who was married to another man without his consent. The punishment for adultery was imprisonment up to five years and/or and a fine. The woman was not punished for this crime.
In the landmark judgment of Joseph Shine v. Union of India, Section 497 was challenged on the grounds of violation of principles of individual autonomy, equality and dignity. The Supreme Court held that section 497 is unconstitutional in nature and struck it down while noting that the provision treated women as the property of their husbands and further violated their fundamental rights. This ultimately decriminalized adultery, although the court will still consider it as a ground for civil action and divorce.
The Bharatiya Nyaya Sanhita Bill, 2023, has no mention of adultery as a crime, eliminating it.
Section 377 of the Indian Penal contained provisions on unnatural sex that said that anyone who has intercourse with a man, woman or animal that is against the order of nature will be punished with life imprisonment, or imprisonment up to ten years and a fine. While a five judge bench of the Supreme Court in Navtej Johar v. Union of India, decriminalised part of s.377 which dealt with sexual intercourse between men and between women, the section still stood to deal with offences against minors, without consent and with bestiality.
Section 38, ( c) of the BNS, 2023 provides for the right of private defense where a person has the right to hurt or kill their assailant if the assailant assaults them with the intention of gratifying unnatural lust. However, the Bill has no provision on what constitutes “unnatural sex.”
The BNS introduces a new clause under Section 69 on using deceitful means or a promise to marry for sexual intercourse. Here deceitful means include the promise of employment or promotion, inducement or marrying someone by suppressing their identity. They will be punished by imprisonment up to ten years and also a fine. This section is clubbed under a list of sections that deal with the crime of rape.
There is no direct law that deals with the provision under IPC. However, reading Sections 375 and Section 90 together, they can be used to deal with this crime. Section 375 constitutes rape and includes what consent means. Section 90 defines invalid consent as consent given by a person under “fear of injury, or under a misconception of fact”. Further, if the person doing the act knows that the consent was given due to such fear or misconception, then too that consent is invalid. In many cases, the question of whether consent that is based on a misconception of the actual facts will amount to rape has come up in the courts. The courts believe that there is no “one-size-fits-all” formula for determining when consent was given voluntarily or when it was under misconception of fact. The Supreme Court has laid down 2 conditions to be fulfilled for the application of Section 90 IPC:
- Consent was given under a misconception of fact.
- The person who obtained the consent should believe that the consent was given as a result of the misconception.
What happens next?
These bills have now been passed to a Parliamentary Standing Committee who will deliberate on them and offer recommendations, if any. The committee will invite representatives from the Home Ministry to give testimony over the bills and can also invite relevant stakeholders like senior lawyers, jurists, journalists to share their inputs. After the committee is ready with their recommendations, they will send the bills back to the Lok Sabha where they will be debated and if passed, will be sent for debate and voting to the Rajya Sabha. After being passed by both the houses, the bills will be sent to the President for assent.