The Indian Justice Code 2023: A Paradigm Shift or Window Dressing?
*Content Warning: This article contains references to sexual offences and sexual trauma.
Amid concerns about inadequate legislative scrutiny and mired in allegations of ‘unconstitutionality’,[1] on 25 December 2023 India’s President assented to the passage of three separate bills that, once in force, aim to substantially overhaul India’s largely colonial-era criminal laws. According to the Home Minister, Amit Shah, the new legislation aims to decolonise India’s criminal laws and to ‘deliver justice, not mere punishment’.[2] Under the legislative package, the Indian Penal Code (1860), Indian Evidence Act (1872), and the now decades-old Code of Criminal Procedure (1973) will be replaced by updated equivalents. This article focuses on certain provisions of the Bharatiya Nyaya Sanhita, 2023 (the ‘BNS’) which will replace the Indian Penal Code. The aim of this article is not to analyse the broader ramifications of the BNS, or its constitutionality, but instead to focus narrowly on certain provisions relating to sexual offences in an effort to ascertain whether the BNS truly updates India’s criminal code and brings it into the twenty-first century or whether it amounts to little more than window-dressing. Ultimately, it will be argued that the BNS fails to live up to its billing and simply re-entrenches existing provisions relating to sexual offences, while also unhelpfully introducing new lacunae into the law.
What is the aim of the reforms?
The passage of the BNS has been hailed by India’s Prime Minister, Narendra Modi, as a ‘watershed moment’ which marks the ‘end of colonial-era laws’ and ushers in a new epoch where India’s criminal justice system is ‘[centred] on public service and welfare’.[3] Beyond the rhetoric, it is also important to note that the BNS also seeks to simplify and harmonise an increasingly complex legal landscape.
Over the years, successive national governments have introduced legislation that has criminalised an ever-increasing number of acts which are not covered by the Indian Penal Code (such as acts of terrorism, which are currently governed by the Unlawful Activities (Prevention) Act, 1967). For their part, state legislatures have also sought to introduce laws criminalising other activities, such as organised crime (see, for example, the Uttar Pradesh Control of Organised Crimes Act, 2017). Responding to developments within Indian society, the Supreme Court of India has, in practice, read down provisions of the Indian Penal Code and decriminalised matters, such as consensual same-sex relations between adults.[4] In the light of such developments, it is self-evident that the Indian Penal Code no longer acts as the central criminal code covering all substantive aspects of Indian criminal law and has required substantive revisions.
It is evident that the BNS seeks to respond to these developments in a number of ways. For example, the BNS introduces a raft of new national offences covering both organised crime[5] and terrorism.[6] In seeking to bring such offences within the scope of the central Indian criminal code, the BNS attempts to fill gaps in state-level laws through the introduction of harmonised national-level offences (though concerns around duplication remain). The BNS also introduces specific provisions in an effort to reflect the evolving criminal justice landscape in India, such as rules aimed at criminalising the phenomenon of ‘mob lynching’[7] (the targeted extrajudicial killing of an individual by a group) on certain grounds, such as caste, sex, language, or personal belief in the BNS. However, it is somewhat odd, given the well-documented rise in ostensibly religiously-motivated ‘mob lynchings’ in India,[8] that the BNS’ provisions omit religion as an actionable ground. The BNS also clearly attempts to put certain judgments of the Indian courts on a formal statutory footing: for example, it omits the provisions in the Indian Penal Code which previously criminalised adultery[9] and recognises that same-sex consensual sexual relations between adults are no longer a criminal activity in India.
On the basis of the foregoing, a reader might well conclude that the BNS is indeed the ‘watershed’ piece of legislation that its supporters suggest that it is; however, the author believes that, on a closer look, it is clear that the BNS fails to live up to this praise and is, sadly, yet another missed opportunity to update and revise India’s criminal laws relating to sexual offences.
A closer look: how revolutionary is the BNS?
Behind the political rhetoric, it is notable that some legal experts have cautiously questioned the revolutionary nature of the BNS. Based on a comparative analysis, some have alleged that, in practice, the BNS retains ‘more than 80%’[10] of the provisions of the Indian Penal Code, while others have stated that the BNS is ‘not an overhaul’ but instead simply contains the ‘same existing provisions under new names’.[11] This criticism is, in the author’s view, most obviously evidenced by the BNS’ woeful failure to update India’s criminal laws relating to sexual offences. While sections have been re-ordered and renamed, the BNS continues to retain many of the most problematic provisions of the Indian Penal Code.
For example, under the Indian Penal Code, the definition of rape in Indian criminal law is gendered (in that rape may only be committed by a man) and carves out ‘sexual intercourse or sexual acts by a man with his own wife’[12] from the definition of rape. In effect, this means that Indian criminal law does not recognise rape in the context of a marriage. As pointed out by the final Report of the Committee on Amendments to Criminal Law (the ‘J.S. Verma Committee’) in 2013, which was constituted in the aftermath of the shocking Nirbhaya incident (where a 23-year-old woman, Jyoti Singh, was assaulted, gang raped, and murdered in Delhi), this provision reflects the now out-dated, nineteenth-century view that wives constituted little more than the ‘property of their husbands’.[13] More than a decade ago, the J.S. Verma Committee expressly recommended that the Indian Penal Code be reformed to remove this exemption.[14] Therefore, in the author’s view, it is deeply depressing that the BNS replicates the Indian Penal Code’s definition of rape[15] and continues to fail to recognise that rape may occur in a marital context.
Moreover, the BNS continues to frame certain non-penetrative sexual offences in a fashion that is, in the author’s view, steeped in nineteenth-century patriarchal mores. For example, the Indian Penal Code criminalises actions which constitute an assault with the intent to ‘outrage’ a woman’s ‘modesty’[16] and ‘word[s], gesture[s] or act[s] intended to insult the modesty of a woman’.[17] Despite the observations of the J.S. Verma Committee that such language is wholly ‘inappropriate’[18] in modern criminal law, these provisions have been carried across without further amendments to the BNS.[19] It is also notable that the BNS does not implement the recommendations of other Parliamentary Committees on matters concerning reforming India’s criminal laws relating to sexual offences. For instance, in response to concerns about the safety of women in India, the Parliamentary Standing Committee on the Criminal Law (Amendment) Bill, 2012 also made a number of recommendations on reforming relevant offences so as to increase their deterrent effect. For instance, the Parliamentary Standing Committee recommended that the penalty for those found guilty of contravening section 354B of the Indian Penal Code (the offence of assaulting a woman with the intent to disrobe her) should be increased to a custodial sentence of between five and ten years.[20] This recommendation also appears to have been disregarded by the BNS.[21]
A new lacuna: sections 375 and 377 of the Indian Penal Code
As noted above, section 375 of the Indian Penal Code and section 63 of the BNS both contain a substantially identical definition of rape which is gendered (that is, rape is defined as an act that can only be committed by a man against a woman).[22] The Supreme Court decision in 2018 to read down section 377 of the Indian Penal Code (which criminalised ‘intercourse against the order of nature against any man, woman or animal’[23]) in effect de-criminalised consensual same-sex sexual relations between adults, but the drafting of section 377 meant that forced intercourse with an adult man continued to be an offence. The wholesale omission of section 377 from the BNS (rather than its targeted amendment) leads to the counterintuitive position that forced intercourse with an adult man is no longer a criminal offence under the BNS (as it cannot constitute rape as defined by Indian criminal law).
Conclusion
Far from revolutionising and ‘de-colonising’ India’s criminal laws relating to sexual offences, in the author’s view the BNS singularly fails to enact a number of key findings and recommendations of both the J.S. Verma Committee and the Parliamentary Standing Committee’s Report on the Criminal Law (Amendment) Bill, 2012. In so doing, the BNS re-entrenches the existing colonial-era laws and lamentably misses the opportunity to reform India’s criminal laws relating to sexual offences.
The author argues that the BNS fails to live up to its billing and simply re-entrenches existing provisions relating to sexual offences, while also unhelpfully introducing new lacunae into the law. Image source: Times of India
Some legal experts have cautiously questioned the revolutionary nature of the BNS. Based on a comparative analysis, some have alleged that, in practice, the BNS retains ‘more than 80%’ of the provisions of the Indian Penal Code, while others have stated that the BNS is ‘not an overhaul’ but instead simply contains the ‘same existing provisions under new names’. This criticism is, in the author’s view, most obviously evidenced by the BNS’ woeful failure to update India’s criminal laws relating to sexual offences. Image source: BBC News
The BNS continues to retain many of the most problematic provisions of the Indian Penal Code. In the author’s view, it is deeply depressing that the BNS replicates the Indian Penal Code’s definition of rape and continues to fail to recognise that rape may occur in a marital context. Image source: Times of India
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Sources Cited
[1] Shemin Joy, ‘Bills to Replace Criminal Codes Enacted Into Law as President Murmu Gives Nod’ (Deccan Herald, 25 December 2023) <https://www.deccanherald.com/india/bills-to-replace-criminal-codes-enacted-into-law-as-president-murmu-gives-nod-2824616> accessed 26 December 2023.
[2] Soutik Biswas, 'New IPC, CrPC Bill: Is India’s Planned Criminal Law Reform a Game-Changer?’ (BBC News, 15 August 2023) <https://www.bbc.co.uk/news/world-asia-india-66495428> accessed 10 October 2023.
[3] Narendra Modi, ‘The passage of Bharatiya Nagarik Suraksha Sanhita, 2023 […]’ (Twitter, 21 December 2023) <https://twitter.com/narendramodi/status/1737852749860266241> accessed 26 December 2023.
[4] Navtej Singh Johar v Union of India, (2018) 10 SCC 1.
[5] S. 109(1), The Bharatiya Nyaya Sanhita Bill, 2023 (BNS 2023) (passed by Lok Sabha, 20/12/2023).
[6] ibid s. 111(1).
[7] ibid s. 101(2).
[8] Parth MN, ‘“It Was His Birthday”: Muslim Lynched Over Beef in Western India’ (Al Jazeera, 30 June 2023) <https://www.aljazeera.com/news/2023/6/30/it-was-his-birthday-muslim-lynched-over-beef-in-western-india> accessed 23 December 2023.
[9] S. 375, The Indian Penal Code, 1860 (IPC 1860).
[10] Biswas (n 2).
[11] ibid.
[12] S. 375, IPC 1860.
[13] J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (23 January 2013) 113.
[14] ibid 117.
[15] S. 63, BNS 2023.
[16] S. 354, IPC 1860.
[17] ibid s. 509.
[18] J.S. Verma Committee (n 13) 111.
[19] See ss. 73 and 78, BNS 2023.
[20] Department-Related Parliamentary Standing Committee on Home Affairs, One Hundred and Sixty Seventh Report: The Criminal Law (Amendment Bill, 2012) (March 2013) 30.
[21] S. 75, BNS 2023.
[22] See s. 63, BNS 2023; s. 375, IPC 1860.
[23] S. 377, IPC 1860.