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BHARATIYA NYAYA SANHITA AND VIOLENCE AGAINST WOMEN – UPSC SOCIOLOGICAL PERSPECTIVE

August 16, 2024

The United Nations defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”

The Bharatiya Nyaya Sanhita (BNS) represents a significant overhaul of India’s criminal law, aiming to address contemporary issues related to women’s safety and ensure gender justice. While the code incorporates several progressive measures towards gender equality and protection of women’s rights, it also faces criticism for perpetuating certain patriarchal norms and falling short of achieving comprehensive gender justice.

How BNS aims  to address violence against women?

1. Introduction of elements of gender neutrality in sexual offences

• The legal definition of crimes like voyeurism and assault has been broadened to include perpetrators of any gender,thus changing traditional gender roles associated with these offenses.
• Similarly legal framework for child trafficking has been expanded to recognize that both boys and girls are vulnerable to exploitation,reflecting a shift towards a more inclusive understanding of childhood and victimhood.

2. Addition of new forms of violence against women 

• Under BNS Section 69,sexual intercourse obtained by deceitful means is now punishable. This includes false promises of marriage, employment, or promotion, and identity suppression.
• This provision signifies a shift in understanding sexual violence beyond physical coercion.It acknowledges that power imbalances and deception can be forms of violence against women.

3. Recognising emotional abuse protecting mental health of women
   • Section 86 has been added to define “cruelty”, which includes harming a woman’s mental health and her physical well-being.
   • According to the National Domestic Violence Hotline, mental abuse, also known as emotional or psychological abuse, involves behaviours aimed at undermining a person’s sense of self-worth, autonomy, and emotional stability. Unlike physical abuse, mental abuse may not leave visible scars, making it harder to recognise and address.
4. Protection of identity of survivors – Significant step to stop rape culture

• The provision mandating a two-year jail term for revealing the identity of a sex assault survivor without permission is a crucial step in combating rape culture.
• Rape culture is a societal atmosphere in which sexual violence is excused, normalized, or even glorified. A key component of this culture is the victim-blaming and shaming that survivors often endure. By publicly identifying survivors without their consent, individuals and media outlets contribute to this harmful environment.
• The new provision safeguards the survivor’s right to privacy and dignity. By creating a safer environment for survivors, it may encourage more people to come forward and report sexual assault.

5. Creating gendered spaces of justice

• For certain offences against woman, statements of the victim are to be recorded, as far as practicable, by a woman Magistrate and in her absence, by a male Magistrate in the presence of a woman to ensure sensitivity and fairness, creating a supportive environment for victims.

Why BNS is being criticised for failing to ensure gender justice?

1. A Stereotypical Grouping – Chapter V, ‘Offences Against Woman and Child.’

• The BNS chapter combining offenses against women and children perpetuates the stereotype of women as solely caregivers and as vulnerable, requiring state protection.
• This contradicts the notion of women as autonomous individuals with bodily integrity, as emphasized by the Justice Verma Committee. Such grouping also undermines the distinct nature of crimes against women and children, necessitating separate treatment.
• It is also pertinent to note that the offences against women and children, , warranted a separate treatment and are not included in Chapter VI – ‘Offences Affecting the Human Body.’

2. BNS and Marital rape exception (MRE)

• The BNS retains the exception of marital rape, criminalizing sexual intercourse by a husband with his wife only if she is under 18. This contradicts high rates of marital rape reported in surveys (According to the NFHS-5 survey, among married women aged 18-49, 83% report experiencing sexual violence by their current husband, and 13% report a former husband as a perpetrator) and undermines women’s bodily autonomy.
• The law prioritizes the institution of marriage over women’s rights, limiting their protection to the confines of this institution. While women have legal independence to choose a spouse, their post-marriage safety is compromised by the state’s definition of marriage.

History of Marital Rape Exception

The marital rape exception, a relic of outdated patriarchal norms, has its roots in the 18th-century English doctrine of coverture. This legal concept bestowed upon husbands absolute authority over their wives, including their bodies. By maintaining this archaic provision, the Bharatiya Nyaya Sanhita not only denies women’s fundamental right to bodily autonomy but also reinforces the notion of marital property. This is a stark contradiction to the constitutional guarantees of equality and dignity, making it imperative to reconsider and abolish this discriminatory law. The MRE was overturned in England through a judgment in 1991, while in India, it has been retained in the supposedly overhauled and modernised BNS.

3. ‘Offences relating to marriage’ (Section 80-87) – Reflection of Patriarchy

• The Bhartiya Nyaya Sanhita (BNS) has retained several provisions related to marriage from the Indian Penal Code (IPC), including those concerning enticing or detaining a married woman (Section 84), fraudulent marriages (Section 83), and cohabitation under false pretences (Section 81).
• The provisions suggests that in today’s society, where women are advanced, independent, and achieving new heights in all areas of work, they are still not capable of making their own decisions in sexual matters related to their body and dignity. It implies that women can be induced into sex merely by a promise of marriage, a job, or promotions.
• These offences also consider women to be passive victims and reinforce the rightful property of their husband or other patriarch in the family (such as the father or brother), which must be protected by the might of the criminal law machinery of the state.

4. BNS and regressive provisions on abortion (Section 88)

• BNS has retained the earlier provision on self-managed abortions for women, criminalizing it (jail term of up to three years) unless done for health reasons or in good faith. So while access to abortion exists under the legal regime of the country (The Medical Termination of Pregnancy (Amendment) Act 2021), there is still no right for a person with the capacity to become pregnant to unconditionally decide whether a pregnancy is to be continued or not.
• This is a reflection of state’s excessive control in societal institutions like marriage, reinforcing perceptions of morality and limiting women’s ability to choose partners and make sexual and reproductive decisions. This highlights the conflict between the state’s understanding of what is ‘personal’ for women and their actual agency.

5. Absence of provisions dealing with rape of men, transgender persons. 
   • The BNS lacks specific provisions for non-consensual sexual offences against males, transgender individuals and non-human entities such as animals. (National Crimes Record Bureau (NCRB) of India recorded 826 cases under IPC 377 in 2020 and 955 cases in 2021.)
   • Unlike the Indian Penal Code (IPC), which had provisions (Section 377), albeit limited, for addressing sexual offenses against individuals other than cisgender women, the BNS has removed these protections.
   • This omission has raised serious concerns about the vulnerability of these groups to sexual violence. While the BNS does include provisions for grievous hurt, which can be invoked in cases of sexual assault, these provisions are not specifically tailored to the unique experiences and challenges faced by men and transgender individuals who are victims of sexual violence.
   • The absence of specific provisions for the rape of men and transgender persons is a significant setback in the pursuit of gender equality and inclusivity in the criminal justice system. It highlights the need for a comprehensive and inclusive approach to addressing sexual violence that recognizes the diverse experiences of victims.
6. Limited protection in Intimate partner violence cases
   • Section 498A of the IPC was introduced to address dowry-related violence but has been used to combat domestic violence more broadly.While it has been a crucial tool for women, it suffers from limitations like narrow scope, vague definition of cruelty, and misuse allegations. The BNS replicates this section without necessary improvements, ignoring issues like live-in relationships and ineffective police response.
7. Procedural hurdles in access to justice

• A procedural law provision in BNSS – section 173(3) – provides discretionary power to the police to conduct a preliminary inquiry to ascertain if a prima facie case is made out, for all offences punishable with three to seven years’ imprisonment. Many have raised acritique of this provision and its likelihood in undermining victim’s access to justice, including in facilitating corruption and ‘mediation’ by the police.

8. Death penalty for sexual offences – a populist move

• Death penalty has been retained for certain aggravated forms of sexual offences such as gang rape of minor and rape causing the woman’s death or causing her to be in a persistent vegetative state. Imposition of death penalty for child sexual offences and sexual offences against women is criticised to be a dangerous, regressive stepand a populist measure which fails to address effective investigation and prosecution in sexual offences, leading to a certainty rather than severity of punishment.  The opposition to death penalty for rape includes the following reasons:

1. As per the NCRB statistics, more than 90% of rape incidents involve accused who are known to the victim (including their family members, relatives and neighbours). Hence imposition of death penalty would deter the reporting of the crime by the victim, who may face pressure from her family and community to suppress the commission of the offence.
2. There are chances of increased violence on the victim, including murder, to destroy evidence and ensure that the victim is in no condition to identify the perpetrators. This is more so for children, who will find it difficult to overpower a gang of perpetrators or escape from them.
3. Accused among weaker and marginalised sections are disproportionately affected by the death penalty.
4. It reflects retributive justice by the State which is contrary to the global move towards reparative and restorative justice.
5. Death penalty for rape, including gang rape of minor, indicates a patriarchal preoccupation of equating rape with death.

Conclusion

Striking a balance between regulation and individual agency is crucial, especially considering that key decisions affecting women and girls’ lives occur in both private and public spheres. Ongoing discussions and clarifications are necessary to ensure women’s autonomy is not compromised in the pursuit of societal norms under the new criminal laws.

Sociological perspectives on BNS

• A Structural Functionalist perspective posits that the BNS’s provisions criminalizing voluntary abortion and adultery serve to reinforce the institution of the family as a cornerstone of societal order. Simultaneously, by imposing stringent penalties for domestic violence and sexual assault, the legal framework aims to mitigate social conflict and promote cohesion within the broader social structure.
• Symbolic interactionists contend that law is socially constructed, reflecting and shaping societal values and meanings. Legislations such as the BNS can influence public perceptions of violence against women by assigning symbolic significance to specific behaviors. Criminalizing actions like voyeurism can contribute to a social climate where such acts are increasingly condemned, thus altering societal norms and expectations regarding women’s safety.
• Feminist legal theory posits that law is often a tool for maintaining patriarchal power. Drawing on Sylvia Walby’s framework of 6 pillars of patriarchy, the state itself can be considered an important pillar of patriarchy. The BNS, with provisions such as the marital rape exception and criminalization of abortion, exemplifies this by reinforcing traditional gender roles and restricting women’s reproductive and bodily autonomy, thereby perpetuating gender inequality.
• Queer Critique of the BNS:- BNS’s glaring omission of non-consensual sexual offenses against males, transgender individuals, and animals represents a profound failure to recognize and protect marginalized groups. This legislation, far from being progressive, perpetuates a heteronormative and cisgendered worldview that erases the experiences of LGBTQ+ individuals and other vulnerable populations.
• Marxist feminist critique of BNS:- BNS often reinforces the commodification of women by focusing on their role as victims rather than as active agents of social change. This approach reduces women to passive objects of protection, rather than recognizing their potential as subjects capable of transforming their own lives and society.
  • BNS fails to adequately address the specific vulnerabilities faced by working women, such as sexual harassment, domestic violence linked to economic stress, and occupational hazards. This reflects the broader disregard for the rights and well-being of the working class within the capitalist system.
  • BNS also perpetuates the notion of criminalisation of poverty. Laws aimed at protecting women can disproportionately affect marginalized and impoverished women. For example, laws against child marriage or prostitution may criminalize survival strategies for poor women.
• Reflection of cultural lag in BNS:- Even though Indian society has advanced rapidly in medical technology and understanding of reproductive health, legal frameworks frequently remain anchored in outdated moral and religious perspectives. This discrepancy is evident in criminalizing of abortion unless done for health reasons or in good faith. It shows societal values like recognising women’s agency, liberty and equality catches up slowly when compared to advancements in technology.
• From a Durkheimian perspective, the retention of the death penalty in BNS indicates a prevailing collective morality that prioritizes retribution over rehabilitation. This suggests that India maintains characteristics of a mechanically solidaristic society, where strong shared beliefs and values underpin a punitive justice system rather than a restorative one typical of organically solidaristic, modern societies.