BNS And Women's Rights : A Critical Analysis

The reform of IPC in the form of BNS has brought significant changes to address long-standing concerns, particularly regarding women's rights, by strengthening provisions for sexual offences, domestic violence, and other related crimes. This article examines the key provisions of the BNS affecting women's rights, the challenges in their implementation, and potential recommendations for further improvement.

Need For Criminal Law Reforms In India

The Indian Penal Code, 1860 (hereinafter referred to as “IPC”) forms the backbone of the Indian criminal system since 1860. However, IPC went under time-bound changes to take in the developing scenario.

Some of the major concerns regarding the rights of women under the IPC were:

• Lack of provisions for marital rape.
• Inadequate punishment for acid attacks.
• Low conviction rates in cases dealing with sexual assault and domestic violence.
• No clear provisions for modern forms of crime, including cyber harassment.

The Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as "BNS") was introduced to address these concerns while ensuring speedy justice.

Key Provisions Of BNS Affecting The Rights Of Women

There are certain provisions under the BNS which specifically deal with the rights of women. These provisions are as follows:

Strengthened Provisions Of Sexual Offences

Sexual offences still form one of the main areas of concern in India. The BNS retains and amends many provisions from the IPC. These provisions are as follows:

Section 63 (Rape)

Section 63 of BNS replaced Section 375 of IPC and retained the definition of rape. However, marital rape is still not criminalized under BNS. The age of consent of a wife has been increased from 15 years to 18 years.

Section 69

Section 69 of BNS has been newly introduced. Section 69 provides for punishment of sexual intercourse employing deceitful means etc. It includes the cases where a man enters into sexual intercourse with a woman by making a promise to marry a woman without any intention of fulfilling the same, shall be punished under this Section.

Section 70(2)

Section 70(2) has increased the age of women from 12 years to 18 years for gang rape. Therefore, as per Section 70(2), if the victim of gang rape is under 18 years, the punishment is death penalty.

Fast Track Investigation

The law has given priority to the investigation of offences against women. It provides that the investigation should be completed within 2 months of recording information.

Critical View

Whereas the law still finds ways of giving harsh punishments, there is a big flaw in excluding marital rape from criminalization.

Intention To Disrobe A Woman

Section 76 of the BNS has modified the existing provision of Section 354B of the IPC. Section 76 has replaced the word “any man who” with “whoever”. Hence, under Section 76 any person, irrespective of their gender, will be liable for assault or use of criminal force to a woman with the intent to disrobe.

Voyeurism

Under Section 354C of the IPC, only a man could be held liable for voyeurism. However, Section 77 of the BNS has broadened this ambit. Now, under Section 77, any person, irrespective of their gender, can be held liable for voyeurism.

Protection Against Domestic Violence

Although domestic violence is mainly dealt with under the Protection of Women from Domestic Violence Act, 2005, certain provisions have been incorporated into the BNS.

Section 82 of the BNS has replaced Section 498A of the IPC. Section 82 has expanded the definition of cruelty to include psychological and emotional abuse.

Although it keeps the penal provisions intact, there is an apprehension that women would misuse Section 82 of BNS.

Hiring A Child To Commit An Offence

Section 95 has been newly introduced in the BNS. Section 95 punishes a person who hires, employs or engages any child to commit an offence. The punishment prescribed under the Section is imprisonment of either description which shall not be less than three years but which may extend to ten years, and with fine.

Honor Killings

Section 103 of BNS provides the punishment for murder. Section 103(2) provides that when a a group of five or more persons acting in concert commits murder on the grounds of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine. The act of honour killing will fall under the ambit of Section 103.

Acid Attacks

Section 124 of BNS has replaced Section 326A of the IPC. It provides the punishment for voluntarily causing grievous hurt by the use of acid. The phrase “causes a person to be in a permanent vegetative state” has been added under Section 124 of BNS.

Challenges In Implementation

Even though the Bharatiya Nyaya Sanhita, 2023 strengthens legal provisions, the challenge lies in the implementation process. Some of the key concerns include:

• Low Conviction Rates: Many cases of rape and domestic violence go unproven or result in acquittal due to the lack of evidence or prolonged trials.
• Lack Of Awareness: Women, especially in rural areas, are still aware of their legal rights.
• Misuse Of Laws: While the law is protective of women, it can be misused by filing false cases under domestic violence laws.
• Marital Rape: Despite the hue and cry of activists, marital rape is not criminalised.
• Police And Judicial Reforms: Any law can only succeed if policing and judicial infrastructure is efficient and speedy, which in India is still slow and burdened.

Recommendations

For effective protection of women's rights, the following changes can be included in Bharatiya Nyaya Sanhita, 2023:

• Marital rape should be criminalised to fill the gap.
• Strengthen cyber-policing against online harassment.
• Ensure cases of crimes against women are resolved within one year.
• Increment in the representation of female police and judges in law enforcement.
• Governments and NGOs should organise awareness campaigns to educate women about their legal rights.
• Ensure acid attacks are prevented through strict laws for selling acid.

Way Forward

The Bharatiya Nyaya Sanhita, 2023, is a landmark legislation that shows progression in the protection of women's rights. However, significant gaps persist, most importantly in the identification of marital rape and ensuring effective implementation. For the law to truly empower women, stronger enforcement, increased awareness, and gender-sensitive legal reforms are essential.

Conclusion

The BNS represents a significant step towards strengthening legal protections for women in India. However, the true measure of its success lies in effective implementation. Addressing challenges like low conviction rates, lack of awareness, potential misuse of laws, and the persistent issue of marital rape is crucial. Continued efforts towards police and judicial reform, increased representation of women in law enforcement, and widespread awareness campaigns are essential to realize the full potential of the BNS in safeguarding women's rights and ensuring justice.

FAQs

A few FAQs based on BNS And Women's Rights are:

Q1. Has the BNS criminalized marital rape?

No, the BNS has not criminalized marital rape. This remains a significant point of criticism and a gap in the legislation according to many activists.

Q2. How does the BNS address voyeurism?

The BNS has broadened the scope of voyeurism laws, making them applicable to any person, regardless of gender, who commits this offence.

Q3. What is the BNS's stance on honour killings?

The BNS addresses honour killings under its provisions for murder, specifying harsher punishments when a murder is committed by a group motivated by factors like caste, religion, sex, or personal belief.