ABSTRACT
The newly added Bharatiya Nyaya Sanhita (BNS) is a comprehensive criminal code which is now recognized for the newly added provisions for the sexual offences to be gender neutral and is applying to both the genders of children and adults. It shows the progressive dimension of the society in its evolving towards treating all the genders equally. In the article, let us go through the objectives of introduction of the new criminal code, comparison of the provisions of the new BNS with the old IPC relating to gender neutrality, Importance of gender neutral provisions, way forward and conclusion.
KEYWORDS: Gender Neutrality, Justice, Criminal Code, IPC, BNS, Gender Equality
INTRODUCTION
The repealed Indian Penal Code (IPC) had its root from the British India and on December 2023 it was replaced by Bharatiya Nyaya Sanhita (BNS) having its effect from July 2024. It has a journey of 163 years to find new reforms in the most comprehensive criminal code with all important aspects of criminal law covered. Overall, the crucial changes that can be seen in the BNS is the code is made concise by bringing down the number of sections from 511 to 358 and making the provisions relating to sexual offences progressive and gender neutral for both the perpetrator and the victim. The new offences such as terrorist acts, technology related crime or organized crime. There are new clauses for crime against women, children.
OBJECTIVES OF INTRODUCTION OF BNS
The main objective of the enactment of the BNS code replacing to the IPC is to consider the new forms of crime in the globalized world that has evolved and progressed in the terms of technologically and socially. It is the need of the hour to bind the laws with the interests of the society that is looking towards the human rights to all forms of gender ensuring gender neutrality. There are many instances all around the world that is legally fighting for the gender equality rights. In order to adhere to the social reforms, the social justice is ensured in the Act by introducing gender neutral criminal provisions without any bias or discrimination along with other necessary changes such as technological changes or the need for addressing the potential issues like terrorism.
COMPARISON OF NEW BNS WITH OLD IPC PROVISIONS
- Definitions
Beginning with the Definitions of the Act, the ‘child’ is newly added by defining under section 2(3) of BNS, where child is any person which is below the age of eighteen years. The word ‘Gender’ under section 2(10) of BNS includes transgender along with male and female genders. ‘Man’ and ‘Woman’ words are defined under two different subsections section 2(19) and section 2(35) of BNS respectively.
- Possession of Property
Coming to the General Explanations of the Act, word ‘wife’ under Section 27 of IPC is replaced by ‘spouse’ under Section 3(3) of BNS by making the subject as “Property in possession of person’s spouse, clerk or servant”.
- Assualt or Criminal Force
With respect to the Assualt or use of Criminal Force to women with intend to disrobe, the words “Anyman who” in the IPC (section 354B) is replaced by words
“whoever” under section 76 of BNS.
- Procuration of child
Words “minor girl under the age of eighteen years” under 366A of IPC are replaced by word “child” under Section 96 of BNS and made it gender neutral.
- Causing death by negligence
It is the newly added provision under Section 106(2) that applies to all irrespective of gender to be punishable for causing death of any person by rash or negligent act
- Organised crime and Petty organized crime
It is the newly added provisions under Section 111 and 112 that applies to any person irrespective of gender to continue any unlawful activity including economic offence, cyber-crimes, human trafficking, selling public examination papers by any person or the group by use of violence to obtain direct or indirect benefit is liable for punishment and fine.
- Terrorist Act
It is the newly added provision under Section 113 that also applies to any person irrespective of gender who is likely to threaten the unity, integrity, security, sovereignty or economic security of India with the intent to strike the terror. Whoever conspires or attempts the act, is liable for punishment and fine.
- Kidnapping from Lawful Guardianship
Under 137(1)(b) of BNS, IPC section of 361 is added as a clause. The words “minor under the age of sixteen years of male or under eighteen years of age if a female” are replaced by “child” thereby making it a gender neutral.
- Importation of girl or boy from foreign country
Comparison of section 366B of IPC with Section 141 of BNS, it is observed that words “any boy under the age of eighteen years” added and the word “she” in the title of provision replaced by “girl or boy”.
- Act endangering sovereignty, unity and integrity of India
It is the newly added provision that applies to any person irrespective of gender who purposely or knowingly by words, either spoken or written, by signs or visible representation or by electronic communication excites or attempts to excite thereby endangering the sovereignty, unity and integrity of India is punished with imprisonment for life and fine.
- Harbouring deserter
In case of this provision, previously under Section 136 of IPC within the expection it mentions the provision would not apply if the harbour is given by a wife to her husband. However under Section 164 of BNS, the word “wife” is replaced by “spouse” in the exception of this section thereby making it a gender neutral
LANDMARK JUDGMENTS
In Independent Thought v. Union of India case, the Supreme Court in its landmark judgement had held that exception 2 to Section 375 of the IPC is declared as unconstitutional and is struck down. The court held that sexual intercourse with a girl child below 18 years of age is considered as rape regardless of whether she is married or not. This decision was taken keeping in mind the rights of the girl child. In the new legislation of BNS code, the legislators have implemented the judgement and modified the exception 2 stating that the sexual intercourse by man on his wife who is not under 18 years of age is not considered as rape. Thereby, the provision is now aligning to the POCSO Act and to the current needs and interests of society aiming towards gender neutrality.
IMPORTANCE OF GENDER NEUTRAL PROVISIONS
The view of the crimes to be committed by male who are dominant in money and muscle power is no more the hard truth but will have to see the both the gender who has been occupying the equal positions in the society can also commit the criminal offences causing the threat to life and loss of property. That into consideration, gender neutral provisions are brought to make all the genders equally liable for the criminal acts committed in the society. This ensures the fair implementation of laws in the society bringing the peace and harmony among the people.
WAY FORWARD
There is a need and the requirement of successful implementation of the provisions and bringing in more broad view in the designing of the criminal policy by observing the previous cases and looking into the current trends and forms or types of crimes created with new progress in society such as cyber-crimes or AI related issues. Keeping these criteria, the opinions of the public and the experts in distinguished fields have to be considered. To create legal awareness, the workshops, seminars among the lawyers and police authorities have to be conducted so that they also change the attitude towards the reforms brought and become gender sensitive and inclusive in their daily practice of law. There has to be imbibing of the ideas from the global practices and collaborate with the NGO’s to seek their help in working at the ground level and report to the concerned authorities on its effective implementation.
CONCLUSION
With the new BNS in its place set for the implementation, by being open to the feedbacks and reforms to the future needs will make the code to be an example of the evolution of the criminal justice system with the inclusivity of gender. It ensures the protection and the safety of the individuals and the nation thereby promoting equality and social justice in the legal system of India.
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WRITTEN BY: SOUJANYA V
