Abstract
This paper discusses anomalies in the new Bharatiya Nyaya Sanhita Bill 2023 and conducts a comparative analysis between the proposed bill and the established Indian Penal Code (IPC) with special regard to laws concerning rape and unnatural offences. Using the methodology of doctrinal research, comparative analysis of the bill has been done. The writer has gone through a variety of extant literature, including statues, case laws and news worthy instances to justify the claim and reach to the conclusion. This paper aims to point out the contrast between the old and new legislation. The ramification of eliminating specific outdated sections from the new bill are also covered in this study. Ultimately, a conclusion has been put forth by the writer including some suggestions that could improve the legislation. The recommendation that has been made are the outcome of a thorough analysis of numerous national and international instruments while taking the socio-legal characteristics of the Indian subcontinent into consideration.
Keywords: Legislation, Literature, Framework, Irregularities, Provision
Introduction
On August 11 2023, The Home Affairs Ministry launched a new bill in the Lok Sabha, known as Bharatiya Nyaya Sanhita Bill, 2023, that was brought up to the standing committee which replaced some of the existing provisions of the Indian Penal Code,1860 with new modified provisions and added some new provisions to the existing Penal Code of the country. The Bharatiya Nyaya Sanhita, 2023 (BNS) was enacted on December 25, 2023, repealing and replacing the Indian Penal Code, 1860 (IPC) as the new penal code of the country. The Bharatiya Nyaya Sanhita repealed section 377 which specifically dealt with criminalizing Unnatural sexual offences that included un-consensual same sex intercourse, Necrophilia which is sexual offence against a dead body and Bestiality which can be defined as the process of sexual intercourse between a human and an animal.
According to Indian Penal Code 1860, section 377 defined Unnatural Offence as “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Homosexual may be defined as a person who is sexually or romantically attracted to people of their same sex. Section 377 of the Indian Penal Code dates back to 1861-62 during the British rule in India. Despite Parliamentary Committee’s recommendation to retain section 377, the reintroduced Bharatiya Nyaya Sanhita Bill omits it, making the rape of men, transgender individuals, and animal non-offences. The unnatural offences under section 377 were comprehensive in nature including exploitation of a woman by another woman, a man by another man, or of a deceased body and animal. Omission of the provision related to unnatural offences specified in section 377 has created a grey area.
The newly implemented Bharatiya Nyaya Sanhita (BNS) Act, marks a notable shift in legal regulation concerning sexual offenses, narrowing down the scope of what was previously addressed in Section 375 in the Indian Penal Code (IPC), now delineated as Section 63 in the BNS Act. Rape and unnatural offences are two different terms. Section 63 of the bill defines ‘Rape’ as the act of a man inserting his body part, such as penis or any foreign object, into a woman’s body. However, this definition is limited as it only acknowledges men as perpetrators of this crime and fails to consider that a woman can also commit rape. One pivotal stride towards substantive legal reform in the BNS Act is the explicit inclusion and penalization of marital rape. In stark contrast to the IPC, where marital rape was not explicitly addressed and lacked specified penalties, the BNS Act recognizes and categorically condemns this violation within the sanctity of marriage. This significant change signals a break from antiquated practices and a dedication to acknowledging people’s agency and autonomy especially women in matrimonial partnerships. The BNS Act recognizes the heinousness of such crimes and their damaging effects on victims, and it brings punitive measures for marital rape in line with modern ideas of justice.
Research Methodology
This paper is of descriptive nature and the writer have implied Doctrinal form of research methodology. The paper is based on primary as well as secondary sources. The writer has gone through the existing literature concerning the topic of research to frame arguments and arrive at conclusion and has provided suggestions, identifying the gaps in bill.
Review of literature
“Outraging the modesty of men” by Sagar Chaudhary, Sunidhi Pandey and Priyanshu Tiwari, Indian Journal of Law and Legal Research (2024)- In this article the author(s) argue that the Bharatiya Nyaya Sanhita Act, create a significant gap by repealing Section 377, which previously dealt with unnatural offences, has been removed, leading to a void in the legal framework for addressing these types of crimes.
“Enacting a law on sexual assault using deceptive means in India” by Nikunj Kulshreshtha, Liverpool Law Review (2024)- This article critically analyzes the legal provisions on rape in India, including those in the Bharatiya Nyaya Sanhita.
“The legal perspective of Necrophilia in India; An analytical study” by Chinmaya Hegde, Indian Journal of Integrated Research in Law- The author explains necrophilia and compares laws for necrophilia in different country highlighting the need for better provisions in India.
Method
The research paper commences with delineation of the Bharatiya Nyaya Sanhita Bill and Indian Penal Code, highlighting the changes that have taken place with regards to unnatural offences and rape. Subsequently, it meticulously examines the new bill and how it has created obscurity for sexual offences related to transgender, animals and rape of men. Furthermore, the paper delves into a detailed scrutiny of the new bill, elucidating its ramifications on certain section. Additionally, the paper also meticulously evaluates certain case laws to provide the arguments to support the research. Finally, the paper culminates with suggestions and conclusive summary, synthesizing the key findings and implication of the study.
Theoretical Background
The concept of human rights is combined with divine rights which is also referred to as natural rights or God given rights. Every single person despite their gender, sexuality, race are entitled to these natural rights. The argument behind this is that these natural rights are the most basic rights that a person needs to function freely as a person, as an individual. The Constitution of India have incorporated Fundamental Rights which are enlisted in Part III are also inspired from the concept of human/ divine rights.
The struggle of homosexual society has not been new as they have evidently faced a lot of difficulties and discrimination in the past and have struggled for some of the most basic rights and freedom. Even after the judgement in the National Legal Service Authority vs. Union of India 2014 case in which it was said that transgender people have the same fundamental constitutional rights as everyone else it took another four years to decriminalize consensual same sex intercourse. In a landmark decision case of Navtej Singh Johar vs. Union of India 2018 the 5-judge bench judgment led by then Chief Justice of India Dipak Misra reached a unanimous decision to decriminalize consensual sexual relations between adults, regardless of their gender, and partially struck down Section 377 of the Indian Penal Code, 1860. Now, without provisions to criminalize sexual crimes against homosexuals in the newly introduced Bharatiya Nyaya Sanhita, this is a step backwards in the fight for equality and non-discrimination. It simply puts homosexuals along with men, animals and the dead in a situation where they have no criminal law to guarantee their right to sexual crimes against them.
Arguments along with the Results and findings
- No provisions for homosexuals.
“Homosexuality is not a mental disorder”
The lack of provision for sexual offences against homosexual create a cavity and a pit for them not giving this section of society a proper chance to fight against the wrong. Various reports show that the sexual offences against homosexuals have gone up by significant percentage and almost half of them goes unreported because of the stigma attached with homosexuals and even the cases which were reported goes unpunished creating a situation where unfortunately the offenders get an upper hand. Now, with the Bharatiya Nyaya Sanhita providing no legal restraint for the same, the offenders will not be threatened to commit such offences. According to section 377 of Indian Penal Code, if a person is injured or suffers injury as a result of sexual abuse by a person of the same sex, it is within the framework of this provision and the injured person can be legally protected but since this provision is not included in the new law, there is no help provided to the injured person under the Bharatiya Nyaya Sanhita. This gross ignorance of Indian lawmakers is a violation of Right to Equality against the whole community of homosexuals.
- No provision for Necrophilia
“The dead cannot cry out for justice; it is the duty of the living to do so for them.”
Section 377 of the Indian Penal Code dealt with the offences which are against the order of nature and are usually very rare but that does not amount to the fact that these offences are relatively of lesser importance or they don’t happen at all. When a deceased woman or man is sexually abused (which used to be the part of the unnatural offences) commonly known as necrophilia, the family of the sexually abused deceased has no criminal laws to report the crime. On the other hand, if a living woman is sexually abused or raped, the Bharatiya Nyaya Sanhita envisages an appropriate channel and provisions to punish the criminals. Another point that is evident is case of inequality which can be clearly seen between men and women is that an unnatural offence or sexual abuse against men is not a crime in the eyes of law.
Thers has been a hike in the cases of necrophilia in India which is already a concerning issue in itself but now with the lack of legal restraint against it, it’s almost unconquerable to provide justice to a dead person. In a recent case, in 2020 a fifty years old male was arrested in Assam for having intercourse with the corpse of 14 years old minor girl. Another very infamous case of necrophilia would be Nithari Case wherein more than fifteen girls were kidnapped, murdered and raped after death. An incident which happened in 2022 where 23-year-old man in Assam’s Udalguri district where he killed a woman taking bath and raped her corpse and an incident during the COVID lockdown where a shopkeeper killed a woman customer and sexually violated her dead body are some of the few recent necrophilia incidents that have happened in India. The offender was charged under section 377 for unnatural offence for having intercourse with the dead bodies. The above cases highlight that necrophilia is not a new phenomenon in India and these crimes haven’t stopped taking place. Cases like these are evidently present in India making it a necessity to have specific provision against necrophilia and absence of this creates a vague situation, the victim denied justice and the offender being free. This is completely contrary to the purpose of the Indian criminal justice system.
- No provisions for sexual offence against animals.
Under section 377 of Indian Penal Code, if an animal was sexually exploited or raped by any human being, the offender was to be charged under this section of the crime of unnatural offence. But the Bhartaiya Nyaya Sanhita Act there is no such provision for sexual exploitation of animals. Any mention of sexual offences against animals has been removed, and having sex with an animal is no longer a crime, which is a dangerous situation that will leave a large number of potential victims as there is no other rule or provision governing this area of crime in India. In the case of Karnail Singh & Others v State of Haryana the court in its judicial pronouncement held that animals will be considered as legal person. By repealing section 377, it is simply disregarding the Supreme Court’s pronouncement that was made in the case of Animal Welfare Board of India vs. A. Nagaraja and others, in which it was held that every animal has the Right to Life as same as any human and therefore it is the duty of state to protect the animals from any sexual exploitation and rape. Other significant legislation in India related to animal welfare like The Wildlife Protection Act 1972, The Prevention of Cruelty Act 1960, etc. also does not cover any such provision regarding sexual exploitation or rape of animals. In 2018, in the Maroda village in Haryana, eight intoxicated men forcefully and brutally raped a pregnant goat. In another case, a cow was raped by a fifty years old drunk man in Betul district in Madhya Pradesh and was charged under section 377 of Indian Penal Code. These cases depict the importance that section 377 held. In the absence of clear regulation sand explicit legal frameworks addressing animal sexual assault can create a legal loophole and opens the door to potential exploitation by those committing such offence.
- Section 63 of the bill not gender neutral.
According to Section 63 of the Bharatiya Nyaya Sanhita, ‘Rape’ is delineated as crime wherein a man penetrates the body of a woman with his penis or any other body part or any foreign object without the consent of a woman. The definition of rape provided by the Bharatiya Nyaya Sanhita is completely and utterly vague and biased in the favour of women because it only mentions the exclusive scenario of a man raping a woman and completely ignores the possibility of a man getting raped by woman. In India, there is a common perception of men being viewed as invulnerable who wield their power to exploit women. This has to be the most prevailing notion behind these gender biased laws. However, if we consider the ground reality that is reflected in the survey of Insia Dariwala which surveyed 1500 male out of which 71% of men surveyed said they were abused, 84.9% said they had not told anyone about the abuse and the primary reasons for this were shame (55.6%), followed by confusion (50.9%), fear (43.5%) and guilt (28.7%). Unless this Section is made gender neutral, it completely ignores the possibility of a man being sexually abused which is ambiguous and equivocal. This makes it unclear for the authorities to determine under which provision to file the chargesheet charge the guilty offender (women raping other women or man). On 16th of June 2018, an instance of 20-year-old boy who had to endure the sexual assault by five men in Ghaziabad by a foreign object was inserted into his rectum Similarly, there are lots of cases in the armed forces where men are subjected to lots of sexual violence.
Though the Section 375 of the Indian Penal Code which talked about rape was also not gender neutral and thus, did not deal with the same issue, it was assumed that because the provisions were almost one hundred and sixty years old, dating back to the year 1860 making the issue of sexual offence against man a not so pertinent and with Section 377 in force the offence of rape of men were reported under this provision. Section 377 of the Indian Penal Code earlier acted as an equaliser for the gender biased rape provisions. With the increase in the rates of sexual offences against men it was believed that with the introduction of the new bill, gender neutral sections for sexual offences would be comprehended but the bill stomps the rights and hopes of male victims who have been sexually abused. The 172nd law commission of India in March 2000 recommended that rape laws in India should be made gender-neutral to protect male victims too. The core idea is that, if rape is desexualized, society can eliminate or atleast be reduced to certain extent. These rape provisions in the Indian Penal Code,1860 and the Bharatiya Nyaya Sanhita are violative of Article 14 of the Indian Constitution which guarantees the Right to Equality to every Indian citizen. Male, according to the rape laws in India, are only capable of committing rape but this is a misconception as woman are also capable of raping a male. One such incident took place in Punjab where four females after abducting a male and raped him continuously before letting him go.
All of this foreground the fact as of how important it is to bring gender neutral laws for rape. By not providing the males of the country legal safeguard, the Bharatiya Nyaya Sanhita makes the entire community of male question the law machinery of India as it has made the magnitude of Right to Life and Personal Liberty guaranteed by the Constitution of India under Article 21 of female greater than male. Bharatiya Nyaya Sanhita has taken a backward step in regards to right of adult male against sexual violence and exploitation. The aim should be to cover this gap and make rape against all persons an offence.
Conclusion and Suggestions
After taking a closer look at the Bharatiya Nyaya Sanhita, and contrasting it with the Indian Penal Code, it can be concluded that the new Bharatiya Nyaya Sanhita Act does not fulfil the needs and requirements of the Indian residents as this new Act creates uncertainty among various sections of the society and creates ambiguity among various concerned implementing authorities. The first and foremost defect in the Bharatiya Nyaya Sanhita is that it is gender biased towards female and neglecting the rights of the male community of the country. There is a need of serious reconsideration and deliberations to bring certain amendments. After putting in some judicial thinking, the writer suggests some certain amendments in the bill. Firstly, the writer suggests that the provisions regarding the same sex rapes and the offence of men being raped should be included. Section 63 of the Bharatiya Nyaya Sanhita which talks about rape should be gender neutral and this suggestion is based on the rapid increase of the number of sexual offence against man, man getting raped in India. India has also witnessed the growing rates of cases of bestiality which brings the writer to other suggestion of including bestiality as an offence under Bharatiya Nyaya Sanhita. The sexual exploitation of animals by humans should be properly defined along with stricter laws and precise punishment for the crime. The same should be followed with necrophilia, a provision with proper definition explaining what necrophilia is as these offences are against the order of nature and not many people know what it means along with explicit punishment which should be added giving no scope to any ambiguity.