This Article has been written by Alshan Husain Shah A, LL.B. Student at K.G.K. (P.G.) College, Moradabad U.P. The article deals thoroughly about the provision of Rape under Newly enacted Criminal Law (BNS)
Introduction:
Undoubtedly, Rape is an extremely disgraceful and egregious act that completely shatters a woman’s physical and mental well-being leaving her in state of distress and even the punishment for rape should be in a way to set an example and therefore Indian criminal law penalizes a man who commits rape against a woman under section 64 (Chapter V) of The Bharatiya Nyaya Sanhita (BNS), 2023. The essence behind penalizing the offense of rape is to ensure that such heinous crime is not reiterated. The Constitution of India under Article No. 21 provides that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. It emphasizes that no offense should infringe a victim’s fundamental right to life and personal liberty. Earlier, the punishment for the offence of rape was governed under section 376 (Chapter XVI) of the Indian Penal Code (IPC), 1860. The introduction of the Bharatiya Nyaya Sanhita, which became enforceable throughout India on 1 July, 2024 provides an effective approach to the criminal justice system in India. This article shall attempt to discuss the punishments for the offense of rape under the new criminal law.
The Bharatiya Nyaya Sanhita, (BNS) 2023:
The Bharatiya Nyaya Sanhita, 2023 replaced The Indian Penal Code, 1860 which was the long-standing criminal penal code for India. This new criminal law emphasizes the crucial aspects necessary for a fair trial of criminal offenses. The most vital dimension of The Bharatiya Nyaya Sanhita, 2023 is the thorough approach to sexual offences, especially the crime of rape. The spirit of the new criminal law is to deliver justice efficiently without compromising the essentials of a just and fair trial. Section 63 defines rape, while section 64 along with subsequent provisions outlines the punishment for it.
Provisions for Rape under The Bharatiya Nyaya Sanhita (BNS), 2023:
Section 63: This section defines the offense of rape. It demonstrates that a man is said to commit “rape” if he-
- Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
- Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:
- Against her will;
- Without her consent;
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;
- With or without her consent, when she is under eighteen years of age;
- When she is unable to communicate consent.
The Act also provides two explanations for the purpose of section 63 which are as follows:
- Explanation 1. For the purposes of this section, “vagina” shall also include labia majora.
- Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
The proviso under Section 63 further states that:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
- Exception 1. A medical procedure or intervention shall not constitute rape.
- Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
It seeks to provide for definition of rape and various circumstances under which the offence shall be treated as rape.
Section 64: This section deals with the punishment for rape.
Sub-Section 64(1) states that-
Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
Sub-Section 64(2) states that-
Whoever-
(a) being a police officer, commits rape-
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central Government or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape, on a woman incapable of giving consent; or
(j) being in a position of control or dominance over a woman, commits rape on such woman; or
(k) commits rape on a woman suffering from mental or physical disability; or
(l) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(m) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
The Act also provides an explanation for the purpose of sub-section 64(2) which is as follows:
- Explanation- For the purposes of this sub-section-
(a) “Armed forces” means the naval, army and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;
(b) “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) “Police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861);
(d) “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Section 65: punishment for rape committed against minors.
Sub-Section 65(1) states that-
Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine:
The proviso under sub-section 65(1) further states that:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
Sub-Section 65(2) states that-
Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death:
The proviso under sub-section 65(2) further states that:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
- Section 66: Provides punishment for causing death or resulting in persistent vegetative state of victim. It states that-
Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 64 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Section 67: This section deals with the sexual intercourse by husband upon his wife during separation. It states that-
Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
The Act also provides an explanation for the purpose of section 67 which is as follows:
- Explanation- In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 63.
Section 68: This section deals with sexual intercourse by a person in authority. It states that-
Whoever, being-
(a) in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
(d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape,
shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.
Explanations for the purpose of section 68 which are as follows:
- Explanation 1- In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 63.
- Explanation 2- For the purposes of this section, Explanation 1 to section 63 shall also be applicable.
- Explanation 3- “Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.
- Explanation 4- The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meanings as in clauses (b) and (d) of the Explanation to sub-section (2) of section 64.
Section 69: This section deals with sexual intercourse by employing deceitful means. It states that-
Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
The Act also provides an explanation for the purpose of section 69 which is as follows:
- Explanation- “deceitful means” shall include the false promise of employment or promotion, inducement or marring after suppressing identity.
Section 70: It deals with the punishment for the offence of Gang rape.
Sub-Section 70(1) states that-
Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:
The proviso under sub-section 70(1) further states that:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
Sub-Section 70(2) states that-
Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death:
The proviso under sub-section 70(2) further states that:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
Section 71: This section deals with punishment for repeat offenders concerning sexual offences. It states that-
Whoever has been previously convicted of an offence punishable under section 63 or section 64 or section 65 or section 66 or section 67 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Severe forms of Rape under BNS, 2023:
The Bharatiya Nyaya Sanhita, 2023 identifies certain situations that make the crime of rape more severe, leading to stricter punishments:
- Rape of a Minor: If the victim is under the age of 16 or 12 (Section 65).
- Rape Causing Serious Harm or Death: When the act results in serious physical injuries, mental trauma or death (Section 66).
- Rape by a Trusted Authority: If the individual is someone in a position of trust like a police officer, public servant or a caretaker (Section 68).
- Gang Rape: When two or more persons are involved in committing the crime of rape (Section 70).
Punishment for Severe forms of Rape:
- Minimum Imprisonment: At least 20 years which can be extended to life imprisonment.
- Death Penalty: If the crime leads to the victim’s death or leaves her in a vegetative state the court can award the death sentence.
- Compensation: Mandatory compensation to be given to the victim or her family by the offender.
What is the stance of the BNS, 2023 on marital rape?
One of the most debated aspects of the BNS, 2023 is its stance on marital rape. Exception No.2 of Section 63 of BNS, 2023 provides that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” The exception provided under this section explicitly states that sexual intercourse by a husband with his own wife above 18 years of age does not constitute rape. This means that a husband cannot be held liable for having sexual intercourse with his wife even without her consent under the offence of rape. The rationale behind this provision is to limit the scope of defining sexual offences within a marital relationship.
Hon’ble Supreme Court’s perspective on marital rape:
While the law aims to protect a woman’s dignity and personal liberty, there is always a considerable amount of debate over whether a husband can be held liable as the rapist of his own wife in a marriage. The Hon’ble Supreme Court of India expressed its view in the case of Dastane v. Dastane (1975) 2 SCC 326, that “sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment.” The court emphasized the importance of sexual intimacy in marriage, considering it as essential as any other marital obligation.
Also, In the case of Independent Thought v. Union of India (AIR 2017 SC 4904), The Hon’ble Supreme Court of India held that non-consensual sexual intercourse with a wife under the age of 18 years amounts to rape. This ruling emphasized that sexual consent must be respected especially in the case of a minor wife.
Important Supreme Court Judgements on Rape:
- Dr. N.G. Dastane v. Mrs. S. Dastane (19 March, 1975)
- Independent Thought v. Union of India (11 October, 2017)
- Deepak Gulati v. State of Haryana (20 May, 2013)
- Vishaka & Ors v. State of Rajasthan & Ors (13 August, 1997)
- Tuka Ram And Anr v. State of Maharashtra (15 September, 1978)
Conclusion:
With the introduction of The Bharatiya Nyaya Sanhita, 2023 the punishments for sexual offences have become stricter in response to the rising number of rape cases in India. The new criminal law also recognizes the need for victim compensation by providing the necessary aid and support. It aims to establish strong punitive measures for sexual offences against women in order to maintain a proper safeguard in society. However, the stance on marital rape remains the same as it was under the old criminal law. The interpretation of these provisions by courts in the future will determine its true essence which will help in creating an evil free society.
References:
https://www.lawxpertsmv.com/post/marital-rape-and-bns-essential-for-upsc-mains-2024
https://articles.manupatra.com/article-details/An-Extensive-study-of-Rape-Laws-in-India https://www.drishtijudiciary.com/editorial/punishment-in-rape-cases
