Wrapping up and drawing to a close, the Indian Penal Code, Criminal Procedure Code, and Evidence Act are taking a back seat. July 1st 2024 is opening doors for new legislations Bharatiya Nyaya Sanhita (IPC), Bharatiya Sakshya Adhiniyam (Evidence Act), Bharatiya Nagarik Suraksha Sanhita (Cr.P.C).
The Indian criminal legal system is undergoing a significant revamp, sparking debates within the legal circles about the timing and necessity of this transformation. The Indian Penal Code (IPC), cornerstone of our legal framework, is replaced by the Bharatiya Nyaya Sanhita (BNS). Substantive laws like the BNS (IPC) are instrumental in defining offences and prescribing their corresponding punishments. On the procedural front, the Code of Criminal Procedure (Cr.P.C) is replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS). These procedural laws meticulously describe the protocols and processes that the legal system must adhere to in the administration of justice. The Evidence Act is taking the name Bharatiya Sakshya Adhiniyam.
The overhaul of these pivotal laws introduces a substantial change in the landscape of criminal legislation. In this article, we will try and examine the impact and changes brought about by the Bharatiya Nyaya Sanhita (BNS), with a particular focus on the protection of women and children.
Quid Pro Quo
A significant change in the BNS is the reduction of the number of sections from 511 to 356 simplifying the structure for the legal professionals. With a total of XX chapters in the BNS, Chapter V (Section 63-99) addresses the offences against women and children, with sections committed against this section of people. Section 69, for instance, talks of sexual intercourse by employing deceitful means;
‘sexual intercourse by employing deceitful means -whoever by deceitful means or by making false promises to marry a women 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.’
‘deceitful means’ – shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.
This brings us to a question, are in trouble? How does the law treat breakups in relationships? If a woman decides to file a complaint against her former partner, will they be found guilty under Section 69? If yes, this would open the floodgates of complaints and increase the possibility of being misused. This downplays the role of women in consenting to engage in such sexual relationships.
While the POSH Act, 2013 remains unchanged, the introduction of new laws could influence the handling of sexual harassment cases. Does this mean quid pro quo cases under POSH law are going to be on the rise? It could bring about significant changes in the procedural aspects. Rules of evidence/burden of proof are different for criminal laws and the POSH Act. A section of legal professionals argue this provision is regressive and misogynistic as it undermines the capacity of women to give consent. While the lawmakers intend to provide stronger protection to women by criminalizing breach of promise, it can be argued that the mandate in this provision is too wide and vague, and could lead to complexities in interpersonal relationships.
Inclusive Language & Gender Neutrality
Sec2(10) of the BNS includes transgenders which was missing in the erstwhile IPC.
“Gender” – the pronoun he and its derivatives are used of any person whether male, female or transgender.
“transgender” shall have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019 (40 of 2019);
It must also be noted that in offences like Assault or use of criminal force with an intent to disrobe a woman (sec 76), Voyeurism (sec77), Words, gestures or acts intended to insult the modesty of women (sec 79) and few other provisions, gender neutrality of the perpetrator has been incorporated while the victim remains the women. This means that a woman can now be found guilty and convicted of these crimes but men still cannot file complaints as victims.
Similarly, sec 63 which defines rape, includes only women as victims of this heinous act, excluding men and transgender individuals. This raises the question of whether inclusion of transgenders in sec 2(10) is shallow? Lawmakers seem to be operating under the assumption that other genders cannot be the victims of these crimes.
On a positive note, BNS has made punishments for rape, rape of a minor below the age of 16 years more stringent. However, marital rape remains unaddressed. Experts opine that law enforcement agencies have been given unfettered power without any checks and balances, which might lead to arbitrary use of authority.
377 does not find its place
In 2018, Apex court with its landmark judgement decriminalized consensual sexual relationships between homosexuals thereby, declaring a part of sec 377 of IPC, which dealt with unnatural offences was held unconstitutional. However, the part that criminalized non-consensual sexual offences against animals, men and transgender individuals was retained in the IPC.
With sec 377 no longer included in the BNS, and in the absence of any other provision addressing this issue, protection of adult males and transgender individuals from sexual violence remains unaddressed.
Stand out features
A few of the standout features of the new law is the introduction of technology, for example, e-FIRs have been introduced. This enables individuals to complain online making it more accessible. Zero FIR, which existed before now gets official approval, meaning it has been formally approved and included in the new code which helps the complainant to raise a complaint in any police station regardless of its jurisdiction.
Justice delayed is justice denied, considering this seriously, new codes have taken steps to expedite trials by introducing strict timelines for the completion of investigations and trials and establishing fast-track courts for serious offences. This comes as a sigh of relief, and society is looking forward for speedy justice.
While the age-old laws were suitable for their time, they needed extensive judicial interpretations to make them relevant to the current times. With this change, the burden on the judges may be reduced.
Resistance to change is natural and this major makeover is aimed to align Indian criminal legal system with contemporary social needs and challenges. There is much to learn as we move forward and adapt to the new system.
Points missed out in the new law:
- But for a mere inclusion of transgenders in the definition, there is stoic silence regarding the protection of transgenders from sexual and other various offences.
- There is no equivalent provision to sec 377 found in the BNS.
- New laws missed out on recognizing violence against men or recognizing men as victims of various forms of violence.
- The idea of husband’s ownership over his wife’s body during the sustenance of marriage still holds good (which is regressive) as marital rape is ignored.
What should IC be aware of while handling sexual harassment complaints:
- In the event of a complaint under POSH laws, where a woman is harassed and induced into sexual intercourse in the pretext of marriage, promotion or employment, IC is under the obligation to inform the victim that this amounts to a criminal offence and she has a right to file a criminal complaint against such men.
In summary, things to watch out for employees/Corporate India:
Trainers, professionals, HR must be mindful of these new laws and should educate the employees of the same loud and clear.
About the Author:
Pallavi Rupanagudi
She is a corporate lawyer with over 15 years of experience. As a trainer and external member, she is dedicated to combating sexual harassment through education and awareness. She empowers organizations and individuals with the skills needed to address and prevent sexual harassment.
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