Abstract
This research report presents a detailed analysis regarding the protection of women’s and children’s rights in India in light of BNS, 2023. The new provisions under this Act have been compared with the existing provisions of IPC regarding sexual offences, domestic violence, harassment at the workplace, trafficking, child sexual abuse, child labour, and Juvenile Justice.
The following report examines the potential implications of these amendments, the criticism, and the problems encountered in their implementation, and further evaluates how successful the BNS has been toward its aim of tackling contemporary issues related to women’s and child rights. The analysis shows that while the BNS brings forward quite a number of progressive measures within the criminal justice system, its success will depend on its effective implementation and addressing the problems within the criminal justice system.
Keywords
Bharatiya Nyaya Sanhita, Indian Penal Code, Women’s Rights, Child Rights, Criminal Law Reform, Sexual Offences, Domestic Violence, Child Protection, Legal Analysis, India
1. Introduction
1.1 Historical Context and Need for Reform
Bharatiya Nyaya Sanhita, 2023, is a landmark change in the criminal justice system of India and really marks the end of an epoch ruled by colonial times laws. For more than 160 years, the IPC dated 1860 remained the paramount criminal code in India. In its glorious run, the IPC underwent umpteen amendments during all these decades, but the main structure and most of its provisions were still based on 19th-century British colonial jurisprudence.
The need for drastic reform of India’s criminal laws is nothing new. It has long been felt by experts, legal scholars, and policymakers that the existing laws were unsatisfactory in dealing with the intricacies of a modern crime scenario, changing social conditions, and emerging technologies. It also felt that the criminal justice system in India must meet the requirements of an independent India imbibed with values, culture and social realities of Indians and not its colonial legacy. Secondly, it was realised that India’s criminal justice system must meet the requirements of an independent India imbued with values, culture, and social realities of Indians, rather than its colonial legacy.
The Bharatiya Nyaya Sanhita, 2023, together with the Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam, are part of an omnibus reform of the criminal justice system in India. The bills were introduced to the Lok Sabha on 11 August 2023 and are Restaurants for amending the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872.
The BNS adopts a modernist-indigenizing approach to the framework of criminal law, responding to contemporary challenges and feeling the pulse of constitutional values. These include making provisions for new offences, modifying some others, and bringing in efficiency measures within the processes of criminal justice.
1.2 Development and Introduction of the BNS
The Bharatiya Nyaya Sanhita, 2023, is a part of the set of three bills introduced in the Lok Sabha, the lower house of the Parliament of India, on 11 August 2023, all of which taken together shall renovate the criminal justice system of India:
- The Bharatiya Nyaya Sanhita, 2023 (to replace the Indian Penal Code, 1860)
- The Bharatiya Nagarik Suraksha Sanhita, 2023 (to replace the Code of Criminal Procedure, 1973)
- The Bharatiya Sakshya Adhiniyam, 2023 (to replace the Indian Evidence Act, 1872)
Detailed consultations with a cross-section of stakeholders—the experts in the field of law, enforcement agencies, civil society organisations, and the general public—have gone into the making of these bills.
The Ministry of Home Affairs took the lead in this exercise and impressed all concerned with the imperative need for a criminal justice system more in tune with the aspirations of contemporary India and more responsive to its problems.
1.3 Key Objectives of the BNS
The Bharatiya Nyaya Sanhita, 2023, is oriented with a few major objectives:
- Modernization: Revisioning criminal laws to suit contemporary crimes and especially those pertaining to technology.
- Indigenization: It should be a criminal code reflecting Indian values, ethics, and constitutional principles.
- Simplification: Use of the language of law easily accessible and comprehensible to the common citizen.
- Protection of Victims of Crimes: Provisions that address the protection of victims of crimes, in particular, those involving sexual offences and offences against children.
- Deterrence: The penalties for various offences have been reviewed, mostly with the aggravation of punishment.
- Follow-up of New Kinds of Crimes: Inclusion of new kinds of offences, particularly with terrorism, organised crimes, and cyber crimes.
- Ensuring restorative justice: Aggregation of the elements of restorative justice with a focus on reformation and reformation, along with punishment.
1.4 Structure and Scope of the BNS
The Bharatiya Nyaya Sanhita is enormously broad in its coverage, for it is the codified criminal law relating to various offences. Herein, there are a number of chapters that consider specific categories for crimes. Some of these are outlined below:
- Offences against the state and public tranquillity
- Offences against the human body (including homicide, assault, and sexual offences)
- Offences against property
- Offences relating to marriage and family
- Offences against children and vulnerable persons
- Cyber crimes and offences related to digital technology
- Economic offences and corruption
- Environmental crimes
Most basic principles of criminal law from IPC have been retained in the BNS; however, BNS brought far-reaching changes in terms of definitions, penalties and procedural aspects.
1.5 Significant Changes and Innovations
Some of the glaring changes and novelties in Bharatiya Nyaya Sanhita, 2023, have been:
- New offences—organized crime, financing of terrorism, and mob lynching.
- Expansions of the definitions of already existing crimes, mainly relating to sexual offences, have been carried out by bringing in more reprehensible activities within their ambit.
- More stringent punishment for offences against women and children; the provision of capital punishment in some cases has also been provided.
- Inclusion of technology-related offences, including cyberstalking, online fraud, and data theft.
- Introduction of community service as one of the options of punishment for certain crimes
- Provisions of compensation and rehabilitation to victims: incorporated into the substantive part of the code of criminal procedure
- Change in sedition provisions: Aggravation in offences against the sovereignty and integrity of India
- Reclassified offences: In effect, bail and trial can’t be applied uniformly.
1.6 BNS in the context of protecting vulnerable sections of society
The Bharatiya Nyaya Sanhita, 2023 (BNS), is almost an overhaul of the Indian criminal justice system, replacing the colonial IPC of 1860. This research report also dwells upon changes brought about by BNS concerning protecting women and child rights, vis-à-vis the provisions of IPC in that regard. The corpus of analysis is to project the improvements, flaws, if any, and the net impact of such changes on the relevant legal framework for the protection of vulnerable sections of society.
2. Key Changes in Women’s Rights Protection
2.1. Sexual Offences
The BNS has brought about many changes vis-à-vis sexual offences and tried to give more protection to women:
a) Expanded Definition of Rape: The BNS broadens the definition of rape to include more forms of non-consensual sexual acts. It details cases of marital rape, such as when the wife is below 18 years old and when the couple is separated.
b) Aggravated Sexual Assault: There will be a new offence of “aggravated sexual assault” incorporated into the new law in instances related to persons acting in positions of authority, when the victim is a child, or when the offence is particularly brutal.
c) Increased Penalties: The BNS, in general, enhances the penalty for sexual offences, including the provision for capital punishment in the most extreme cases of rape.
d) Identification of Technology-facilitated Sexual Crimes: Other crimes explicitly addressed will be things like revenge pornography, cyberstalking, and harassment on the internet—issues that are real in this modern digital age.
2.2. Domestic Violence
While the legislative framework on domestic violence is primarily retained in the Protection of Women from Domestic Violence Act, 2005, BNS strengthens criminal provisions pertaining to this issue:
a) Extended Definition: The BNS extends the definition of domestic violence to include within its ambit emotional and economic abuse, thus conforming to the meaning given by the civil law.
b) Stricter Penalties: The severity of penalties against a repeat offender in a case of domestic violence increases with the new law.
c) Protection Orders: Provisions of protection orders in cases of domestic violence are brought out, with quicker relief to victims in the BNS.
2.3. Workplace Harassment
Building on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the BNS introduces criminal provisions specifically addressing workplace harassment:
a) Criminal Liability: The new law makes it a criminal offence for employers to fail to implement the provisions of the 2013 Act, including setting up Internal Complaints Committees.
b) Protection Against Retaliation: The BNS introduces specific provisions to protect women who file complaints from retaliation or adverse job actions.
2.4. Trafficking
The BNS leads to enormous progress in human trafficking legislation, which mainly focuses on the issue of women and children:
a) Comprehensive definition: The new Act gives a rather more comprehensive definition of trafficking, which is bound to cover labour trafficking and organ trafficking.
a) Stricter Penalties: The BNS provides for more stringent penalties on the said traffickers, especially in cases where these involve below 18-year-old girls/women or offences with more than one victim.
c) Protection of the Victims of Trafficking: The revised law has within its measures the arrest, protection, and rehabilitation of such victims, including protection as witnesses.
3. Key Changes in Child Rights Protection
3.1. Child Sexual Abuse
The BNS builds upon the Protection of Children from Sexual Offences (POCSO) Act, 2012, strengthening provisions related to child sexual abuse:
a) Elongated Definitions: The new act has expanded the definition of sexual offences against children to cover more forms of abuse.
b) Enhanced Penalties: The BNS has enhanced penalties for child sexual abuse to include life imprisonment and death in aggravated cases.
c) Mandatory Reporting: While retaining the provisions relating to mandatory reporting of cases of suspected child abuse, the new legislation also provides for penalties for non-reporting.
3.2. Child Labour
While the basic legislation on child labour remains the Child Labour (Prohibition and Regulation) Amendment Act, 2016, the BNS makes certain criminal provisions to facilitate stringent enforcement of the provisions on child labour. Under these provisions:
a) Criminal Liability for Employers: The new legislation provides for criminal prosecution of employers who engage children in hazardous occupations.
b) Penalties to Middlemen: The BNS provides for the punishment of all intermediaries or agents (who are part of the trafficking racket for child labour).
While the Child Labour (Prohibition and Regulation) Amendment Act, 2016, remains the primary legislation on child labour, the BNS introduces criminal provisions to strengthen enforcement:
a) Criminal Liability for Employers: The new law introduces criminal liability for employers who engage children in hazardous occupations.
b) Penalties for Middlemen: The BNS includes provisions to penalise middlemen and agents involved in child labour trafficking.
3.3. Juvenile Justice
The BNS brings in amendments that affect juvenile justice legislation; however, the principal Act for the said is the Juvenile Justice (Care and Protection of Children) Act, 2015:
a) Age of Criminal Responsibility: The model statute provides for retaining the age of criminal responsibility at 18 years subject to exceptions relating to heinous offences under the 2105 Act.
b) Special Provisions for Child Witnesses: The BNS provides child-sensitive procedures for recording the statement and evidence of the child witness.
4. Comparative Analysis with the Indian Penal Code
In relation to the Indian Penal Code, Bharatiya Nyaya Sanhita, 2023, reflects a number of important changes concerning its approach towards the protection of the rights of women and children:
a) Modernization: The issues covered by the BNS are absolutely modern in nature and were not dealt with under the IPC, for example, cybercrime and sexually offensive acts done with the use of technology.
b) Enhanced Penalties: On the whole, the BNS provides for more severe punishment for most offences against women and children as compared to the IPC.
c) Elongated Definitions: The new Act has enlarged the definitions of crimes, particularly sexually related offences, to extend to a larger area of offences amounting to pernicious acts.
d) Victim-Centric Approach: The BNS incorporates a lot more sections aimed at protecting the victim and their rehabilitation. Thus, it is found to depart from a purely punitive approach under the IPC.
e) Gender-Neutral Language: Though the BNS still maintains the protection accorded to women and children, the wording used in the enactment is rather more gender-neutral when compared with that of IPC.
f) Integration of Special Laws: Many of these special laws, such as the POCSO Act or the Domestic Violence Act, are merged into the main criminal code in a holistic way within the BNS, thus making it possible to increase integration and enforcement.
5. Detailed Comparison
This comparison highlights the significant advancements made by the BNS 2023 in addressing the various aspects
| Aspect | Bhartiya Nyaya Sanhita (BNS) 2023 | Indian Penal Code (IPC) |
| Rape and Sexual Assault | Section 69 to 74: Enhanced definitions and punishments for various forms of sexual assault and rape. Emphasis on swift justice and victim compensation. Provisions for special courts and fast-track trials for rape cases. | Section 375: Defines rape and Section 376 prescribes punishment. Additional provisions for aggravated rape under Sections 376A to 376D. |
| Domestic Violence | Section 86: Specific provisions addressing domestic violence, including physical, emotional, and economic abuse.Focus on protection orders and support services for victims. | Section 498A: Addresses cruelty by husband or relatives. Punishment includes imprisonment and fines, but procedural challenges often delay justice. |
| Sexual Harassment | Section 71: Comprehensive definition and stringent punishment for sexual harassment in the workplace and public places.Emphasis on creating safe environments for women. | Section 354A: Addresses sexual harassment, prescribing punishment for unwelcome physical contact, advances, and demands for sexual favours. |
| Human Trafficking | Section 110 to 116: Detailed provisions for prevention, rescue, and rehabilitation of trafficking victims. Severe punishments for traffickers, with a focus on organised crime networks. | Sections 370 and 370A: Deal with the trafficking of persons for exploitation, prescribing stringent punishments. |
| Acid Attacks | Section 85: Enhanced legal framework for the prevention and punishment of acid attacks. Focus on victim rehabilitation and compensation. | Sections 326A and 326B: Deal with acid attacks, prescribing stringent punishment and compensation for victims. |
| Child Sexual Abuse | Section 78 to 80: Stronger laws against child sexual abuse, including child pornography and online exploitation. Provisions for child-friendly judicial procedures. | Section 377 (unnatural offences) and the POCSO Act complement each other in addressing child sexual abuse, but IPC alone has limitations. |
| Child Labour | Section 105: Stringent provisions against child labour, focusing on prevention, rescue, and rehabilitation. Emphasis on education and welfare of rescued children. | Sections 370 and 374: Address trafficking and forced labour, but the Child Labour (Prohibition and Regulation) Act provides specific guidelines. |
| Dowry-Related Crimes | Section 118: Comprehensive measures to prevent dowry harassment and deaths.Focus on strict enforcement and support for victims. | Sections 304B (dowry death) and 498A (cruelty by husband/relatives) address dowry-related offences. |
| Female Genital Mutilation (FGM) | Section 89: Explicit criminalization and stringent punishment for FGM. Emphasis on awareness and prevention programs. | No specific provisions under IPC; FGM may be prosecuted under general criminal laws like assault. |
| Sexual Offences Against Children | Section 78 to 80: Detailed provisions specifically targeting sexual offences against children, including grooming and exploitation. Child-friendly legal processes and victim support services. | Sections 375 (rape) and 376 (punishment for rape) include provisions for child victims, supplemented by POCSO Act for more specific protection. |
| Cyber Crimes Against Women and Children | Section 106: Strong legal framework to address online harassment, cyberstalking, and distribution of intimate images without consent. Provisions for swift action and protection of victims’ privacy. | Sections 354D (stalking), 499 (defamation), and IT Act Section 66E (privacy violation) address cyber crimes, but enforcement can be challenging. |
| Marital Rape | Section 72: Explicit recognition and criminalization of marital rape.Emphasis on consent within marriage and protection of victims. | Marital rape is not criminalized under IPC except under specific circumstances (e.g., separated spouses). |
| Protection of Child Rights | Section 78 to 85: Comprehensive approach to protect the rights of children, including health, education, and protection from abuse. Provisions for child welfare committees and special courts. | IPC provisions related to child abuse are supplemented by specific laws like the Juvenile Justice (Care and Protection of Children) Act. |
| Prostitution and Exploitation | Section 110 to 116: Stronger measures to combat exploitation in prostitution. Focus on rehabilitation and support for victims of sexual exploitation. | Sections 370 (trafficking) and 371 (habitual dealing in slaves) address exploitation, but implementation can be inconsistent. |
| Sexual Crimes against Mentally Disabled Women | Section 75: Specific protections and enhanced punishments for sexual crimes against mentally disabled women.Emphasis on victim support and legal assistance. | Section 376(2) includes provisions for aggravated punishment, but additional support mechanisms are limited. |
| Child Marriage | Section 108: Stringent measures to prevent child marriage and protect affected children. Focus on enforcement of legal age for marriage and rehabilitation. | Section 375 (rape) includes provisions related to age, supplemented by the Prohibition of Child Marriage Act. |
| Rehabilitation and Victim Support | Section 117: Comprehensive victim support systems, including legal aid, psychological support, and rehabilitation programs. | IPC does not specifically address rehabilitation; provisions are included in various supportive laws and schemes. |
| Implementation and Enforcement | Emphasis on strict enforcement, fast-track trials, and special courts for speedy justice.Regular monitoring and evaluation of law enforcement effectiveness. | IPC implementation faces challenges such as delays, backlog in courts, and inconsistent enforcement across states. |
7. Potential Impact and Criticisms
The changes brought in by the Bharatiya Nyaya Sanhita, 2023, will no doubt go a long way in impacting women and child rights protection in India:
Positive Impacts:
- Stronger deterrence by way of enhanced punishments
- Relevance to contemporary societal demands and advancements in technology
- Enhanced protection of victims of sexual offences and trafficking
- Improved assimilation of different enactments pertaining to women and child protection
Criticisms and Concerns:
- Overemphasising punitive measures without a corresponding emphasis on rehabilitation and prevention
- The newly made stricter laws, especially regarding consensual relationships, can be misused.
- Systemic issues like police reform and judicial capacity building remain inadequately addressed.
- Certain provisions erode the presumption of innocence.
6. Implementation Challenges
The proper and effective working of the Bharatiya Nyaya Sanhita, 2023, has the following challenges with respect to the protection of women and child rights:
a) Capacity Building: The new act is going to require a lot of training and capacity building for stakeholders like law enforcement agencies and the judiciary to effectively understand and apply the provisions of the new act.
b) Infrastructural Development: Child-friendly courts, victim protection mechanisms, and rehabilitation services under the act are going to require huge infrastructure development.
a) Awareness Generation: Extensive public awareness campaigns are required to educate people about new provisions and their rights vis-à-vis BNS.
d) Inter-Agency Coordination: Smooth implementation will require coordination among a large number of government agencies, including the police, courts, child welfare committees, and women’s commissions.
e) Monitoring and Evaluation: Unless there are effective mechanisms for monitoring implementation as well as evaluation of impact, it is unlikely that the new laws will be effective.
7. Conclusion
The Bharatiya Nyaya Sanhita, 2023, is a far-reaching improvement in the statutory framework of law relating to the protection of women and children’s rights in India. It covers many of the lacunae in IPC and brings in contemporary thinking on criminal justice. Among the notable improvements are the enlarged definitions of offences, enhanced punishments, and emphasis on victim protection.
Ultimately, however, success lies in the proper implementation of these legal reforms, which means changes not only in letters but also in law enforcement agencies, approaches in the judiciary, and societal attitudes at large. Besides, the need for these stricter laws has to be harmoniously manipulated with safeguards against their possible misuse and principles of a fair trial and presumption of innocence.
As India moves forward with this gigantic exercise of revamping its criminal law regime, constant evaluation followed by suitable fine-tuning of these laws would be imperative if it is to ensure that they serve the laudable purpose of ensuring better protection for women and children while adhering to the principles of justice and human rights.
Author: Siva Prasanna Kumar Pedda Puttaiahgari
College: Havnur College of Law, KSLU