Bridging the gulf

The introduction of new criminal laws (referred to as ‘New Laws’) has generated mixed reactions from communities nationwide. The Bharatiya Nyaya Sanhita (BNS) and Bhartiya Nagrik Suraksha Sanhita (BNSS), previously known as the Indian Penal Code (IPC) and Criminal Procedure Code (CrPC), respectively, have implemented several significant changes impacting various societal segments, including women. Indian legislature has consistently emphasised the welfare of women within its jurisprudential and constitutional framework. Consequently, these New Laws incorporate some of the most substantial pro-women provisions to date.

The changes in the New Laws are categorised into four classes for ease of understanding: at the substantive offences level under BNS, at the police investigation level, at the judicial magistrate level and, lastly, at the trial level.

Substantive offences level

The BNS has consolidated previously scattered provisions concerning women’s safety and dignity into one chapter (Chapter V) and reorganised these provisions to prioritise those concerning women. New provisions have been added to fortify women’s rights. For instance, Section 69 BNS introduces a new offence, not previously included in the IPC, that penalises a man who engages in consensual sexual intercourse with a woman under four categories of deceit, including a false promise to marry.

The BNS has excluded adultery from the criminal code, endorsing the landmark Joseph Shine judgement, which decriminalised adultery by declaring the provision as ultra vires the constitution a few years back. This emphasises the legislature’s focus on a woman’s domain. Notably, Section 77 BNS (previously Section 354C IPC) which addresses voyeurism, is now gender-neutral concerning the perpetrator. The term ‘whoever’ replaces ‘any man’ from the IPC, meaning a woman can now be prosecuted for voyeurism if she watches or captures images of another woman engaging in a private act. Similarly, Section 76 BNS (previously Section 354B IPC) which addresses assault with intent to disrobe a woman, now uses ‘whoever’ instead of ‘any man,’ allowing for the prosecution of women perpetrators. Additionally, the BNS has enhanced punishment terms for many offences protecting women.

Police investigation level

The introduction of e-FIR and Zero FIR via Section 173 BNSS will assist women who hesitate to leave their homes to report crimes. Empowering women to report crimes via text message or electronic mode will help them navigate the legal process without fear of stigma or hesitation. Furthermore, women, along with other vulnerable groups such as male children under 15, individuals over 60, and ill persons etc., now have the discretion not to attend summoning calls at police stations in certain proceedings (proviso to Section 195(1) BNSS).

Unlike Section 164A CrPC, its corresponding successor Section 184(6) BNSS sets a fixed seven-day period within which a registered medical practitioner must send a medical examination report of a rape victim to the police. Previously, the lack of a specific timeframe led to delays during the investigation stage. Now, in rape cases, the proviso to Section 176(1) BNSS requires the police to record the statement of a rape victim through audio-video means, including mobile phones as well, if it requires.

Additionally, the Section 46 BNSS explicitly allows the police to handcuff the accused during arrest or court production for offences like rape, acid attacks, human trafficking, and sexual offences against children.

Judicial magistrate level

Section 183(6)(a) BNSS mandates that statements in certain sexual assault cases be recorded by a female judicial magistrate, or in her absence, by a male judicial magistrate in the presence of a woman. There was no such provision in the CrPC. Another provision to Section 183(6)(a) BNSS requires a judicial magistrate to record the statement of a witness as well in cases punishable by ten years or more, life imprisonment, or death, including certain offences against women.

For maintenance cases, Section 145 BNSS (previously Section 125 CrPC) allows dependent parents, including mothers, to file for maintenance at their own place of residence, removing the previous requirement to file only at the ward’s place of residence.

Trial stage level

Section 21 BNSS (previously Section 26 CrPC) still provides that a woman judge shall preferably preside over court trials for certain women-sensitive offences. Also, the term ‘some adult male member’ in Section 64 CrPC, relating to serving summons, has been replaced with ‘some adult member’ in its succeeding provision of Section 66 BNSS, recognising women as capable of receiving court-issued summons on someone’s behalf. The BNSS also allows for the electronic setup of court proceedings, which benefits women who manage domestic responsibilities or live in social milieus where interaction with strangers is restricted.

What is still missed in the new laws?

1. Matrimonial aspects: The status of marital rape, as an exception to the offence of rape in the IPC, is still retained in the new BNS, despite several court rulings recognising marital rape as a ground for divorce. The issue is sub judice in the Apex Court. Additionally, Section 67 BNS still requires that complaints about sexual intercourse by a husband during separation be made by the victim herself, not by someone else, and also despite such a deplorable act of forceful sexual assault by the separated husband may go scot free as the said act still remains a bailable offence.

2. Discretion in FIR registration: Furthermore, as per the Section 173(3) BNSS, a police officer has got a statutory right to refuse the registration of an FIR in a cognisable matter if the offence is punishable with three or more years but less than seven years of imprisonment. This inference is drawn from the discretion being given to the officer in charge of the police station who ‘may’ (and not ‘shall’) proceed ahead in either launching investigation or conducting preliminary enquiry with approval of his deputy superintendent of police or doing nothing. Since the offence of cruelty to married women is still having maximum three years of punishment, and therefore, in all such cases, the victim married women would be at the mercy of the Police officer to get her case registered as an FIR.

3. Deceptive assurances: Section 69 BNS categorises certain deceptions, such as false promises of marriage, employment, or promotion, and marrying by suppressing identity. The phrase ‘suppression of identity’ provides a wide import of understanding, including situations where the male suppresses his caste and class by using distinct caste or class symbol, and thus all such acts might get covered under this section, thereby perpetuating the social stratification and division in the society.

In addition to addressing these issues through state-specific amendments, public awareness of the new laws is crucial for both personnel within the criminal justice system and the common citizens. Bridging the gap between technological innovations and societal understanding and ensuring effective communication between citizens and law enforcement become paramount to encourage the maximum utilisation of the exceptional provisions in the New Laws.

OP Singh, former DGP UP, is currently Advisor in India Child Protection at Delhi; Himanshu Dixit, an alumnus of Indian Law Institute, is a Delhi-based Advocate. Views expressed are personal