Bharatiya Nyaya Sanhita: Death Penalty for Gang Rape of Minors, Criminalises Sex Through Deceitful Means – Read Details

On August 11, the Government of India introduced three Bills in the Lok Sabha to repeal and replace three colonial-era legislations – the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. The Union Home Minister Amit Shah introduced the three Bills – Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Bill.

“The focus of the existing laws was to protect and strengthen the British administration, the idea was to punish and not to give justice. By replacing them, the three new laws will bring the spirit to protect the rights of the Indian citizen,” the Union Home Minister said.

The Union Government introduced the Bharatiya Nyaya Sanhita to repeal and replace the colonial-era Indian Penal Code (1860). The proposed code gives precedence to offences against women and children as stated in the ‘Statement of Objects and Reasons’ in the Bill. The government has introduced a dedicated chapter – Chapter V ‘Of Offences Against Women and Children’ – to deal with with sexual offences, criminal force against women, offences related to marriage, offences related to causing miscarriage & offences against children.

Definition of Rape
The government has moved the definition of ‘Rape’ from Section 375 of the colonial legislation to Clause 63 of the proposed code. Furthermore, the government has also amended Exception 2 under the provision, which penalised marital rape of a woman under the age of 15, to now punish marital rape of a woman under the age of 18. The amendment brings the age on par with the age of consent.

Punishment of Rape
Furthermore, the government has moved the ‘Punishment for Rape’ from Section 376 of the IPC to Clause 64 of the proposed code. The new code amends the colonial provisions to the extent that Section 376(3) of the IPC, which punished rape against a woman under the age of 16, has been moved to a dedicated clause punishing rape of minors – Clause 65 (Punishment of Rape in Certain Cases) of the proposed code.

The government has also moved Section 376AB (Punishment of Rape Against a Woman Under Twelve Years of Age) of the IPC to Clause 65 of the proposed code, to streamline criminal provisions. Notably, Section 376(3) and 376AB were inserted into the colonial code through the Criminal Law (Amendment) Act in 2018.

Clause 65(1) of the proposed code punishes the rape of a woman under the age of 16 with rigorous imprisonment for not less than 20 years which may extend to life imprisonment, for the remainder of the convict’s natural life. Whereas Clause 65(2) of the proposed code punishes rape of a woman under the age of 12 with rigorous imprisonment for not less than 20 years, life imprisonment and death penalty.

Clause 65 also imposes a fine against the convict with the intent to rehabilitate the rape victim. The first proviso of Clause 65 states that the fine imposed against the convict must be just and reasonable to meet the medical expenses and rehabilitation of the victim. Meanwhile, the second proviso states that the fine imposed against the convict must be paid to the victim.

Sexual Intercourse Through Deceitful Means
The government has inserted Clause 69 (Sexual Intercourse by Employing Deceitful Means, etc.) to penalise sexual intercourse where the man obtained the woman’s consent through “deceitful means” or through a false promise of marriage. While the offence does not amount to rape, the convict could be punished with either simple or rigorous imprisonment for a maximum term of 10 years. Furthermore, the Explanation under the Clause defines “deceitful means” as means including false promise of employment or promotion, inducement or marrying after suppressing identity.

Punishment of Gang Rape
The government has made amended the provisions criminalising ‘Gang Rape.’ The government has clubbed Section 376D (Gang Rape), 376DA (Punishment for Gang Rape on Woman Under Sixteen Years of Age) and 376DB (Punishment for Gang Rape on Woman Under Twelve Years of Age) of the IPC into Clause 70 (Gang Rape) of the proposed code.

Clause 70(1) criminalises ‘Gang Rape’ and punishes the same with rigorous imprisonment for a term not less than 20 years which may be extended to life imprisonment for the remainder of the convict’s natural life. The first proviso of the sub-clause also provides for imposing a fine against the convict which is just and reasonable to meet the medical expenses and rehabilitation of the victim. The second proviso of the sub-clause provides that the fine imposed against the convict is paid to the victim.

While Clause 70(1) is the same as Section 376D of the colonial code, the government has made major amendments to provisions criminalising gang rape of minors. Clause 70(2) criminalises gang rape committed against a woman under the age of 18. The clause introduces the death penalty for convicts committing gang rape against women under the age of 18, which was earlier 12 years under the colonial code. Notably, Section 376DA did not provide for the death penalty for gang rape of women under the age of 16.

Criminal Force and Assault Against Women
The Union Government has moved certain provisions related to criminal force and assault against women into Chapter V of the proposed code to streamline provisions criminalising offences against women.

Section 354 (Criminal Force to Outrage Modesty), 354A (Sexual Harassment), 354B (Criminal Force With Intent to Disrobe), 354C (Voyeurism) and 354D (Stalking) of the IPC have been moved to Clause 73 to 77 of the proposed code. Furthermore, Section 509 (Words, Gesture or Act Intended to Insult the Modesty of a Woman) of the IPC has also been moved to Clause 78 of the proposed code and under the banned of criminal force and assault against women.

While Sections 354 to 354D were under the banner ‘Criminal Force and Assault’ and Section 509 was under the banner of ‘Criminal Intimidation, Insult and Annoyance’ earlier, the proposed code streamlines these provisions under the banner of criminal force and assault against women under Chapter V.

Offences Relating to Marriage
The government has further streamlined the offences related to marriage and included Section 304B (Dowry Death) of the IPC has been moved to Clause 79 under the proposed code, under the banner of ‘Offences Relating to Marriage.’ The provision criminalising dowry death was under the banner of offences affecting life under the colonial code which has now been moved under Chapter V.

The government has further moved Sections 493 (Cohabitation Deceitfully Inducing Belief of a Lawful Marriage), 494 (Marrying Again During Lifetime of Husband or Wife), 495 (Concealment of Former Marriage With Whom Subsequent Marriage is Contracted), 496 (Fraudulent Marriage Ceremony Without Lawful Marriage), 498 (Enticing, Taking Away or Detaining a Married Woman With Criminal Intent) and 498A (Cruelty) under the IPC to Clause 80 to 84 of the proposed code. Notably, Sections 494 and 495 have been clubbed into Clause 81 of the proposed code.

Furthermore, Section 366 (Kidnapping, Abducting or Inducing a Woman to Compel Her Marriage) of the IPC has been moved to Clause 85 of the proposed code. The government has moved the aforesaid clause from under the banner of ‘Kidnapping, Abduction, Slavery and Forced Labour’ to Chapter V, dedicated to penalising offences against women and children.

Causing Miscarriage
The government has moved certain provisions concerning causing miscarriage IPC’s Chapter XVI which penalised offences affecting the human body to Chapter V dealing with offences against women and children to streamline the provisions.

Sections 312 (Causing Miscarriage), 313 (Causing Miscarriage Without Woman’s Consent), 314 (Death Caused by Act Done With Intent to Cause Miscarriage), 315 (Act Done to Prevent Child Being Born or Causing it to Die After Birth) and 316 (Causing Death of Quick Unborn Child) of the IPC have been moved to Clause 86 to 90 of the proposed code.

Offences Against Children
Sections 317 (Exposure or Abandonment of Child Under the Age of 12) and 318 (Concealment of Birth by Secret Disposal of Dead Body) of the IPC have been moved to Clauses 91 and 92 of the proposed code to streamline provisions. The sections were under Chapter XVI of the colonial code earlier.

Furthermore, the government has introduced Clause 93 in the proposed code, criminalising any person who hires, employs or engages a child below the age of 18 to commit an offence. The clause punished such a person with a term stipulated for that offence as if the person committed the offence himself. The Explanation, provided under the provision, states that the provision covers cases where the child was hired or engaged in sexual exploitation or pornography.

The government has further amended Section 366A (Procuration of Minor Girl) of the IPC to make it a gender-neutral offence and moved the same under Clause 94 (Procuration of Child) of the proposed code. The clause criminalises procuration of a child, below the age of 18, wherein a person induces a child to go from any place, knowing that the child would be forced or seduced to illicit intercourse with another person. Clause 94 prescribed a punishment which may extend to 10 years and also imposes a fine.

Section 369 (Kidnapping/Abducting a Child Under the Age of 10 With Intent to Steal From its Person) of the IPC has been moved to Clause 95 of the proposed code. The clause retains the imprisonment which may extend to seven years and also imposes a fine. Furthermore, Sections 372 (Selling Child for Purposes of Prostitution) and 373 (Buying Child for Purposes of Prostitution) of the IPC have been moved to Clauses 96 and 97 of the proposed code.