NEWSLETTER

The beginning of July saw a new statute governing crime in India. Bharatiya Nyaya Sanhita 2023 (BNS), came into force and replaced the British-drafted Indian Penal Code, 1860 (IPC). BNS is largely an exercise in renumbering of provisions of the IPC with some additions and omissions. While much can be, (and has been) said about the necessity of this replacement or whether its much-vaunted purpose of “decolonising” Indian Criminal Laws passes muster or not, BNS is the law of the land, and lawyers, judges, and citizens have to move on and grapple with it.

Deceptive Sexual Intercourse and False Promise to Marry

Prior to BNS coming into force, sexual intercourse performed by deceptive means including taking consent with a false promise to marry was considered rape under Section 375 of the IPC, the underlying logic being that consent obtained through deceptive means was not a free, full, and voluntary consent. The new provision under BNS, however, categorises it separately from rape. Section 69  states that if sexual intercourse is performed with a woman through deceitful means or by making a false promise to marry, then the perpetrator, if found guilty, can be punished with a sentence of imprisonment upto 10 years.

The jurisprudence regarding this offence would remain largely unchanged. Sexual offences cannot, or should not, be limited merely to forceful intercourse but have to include deceitful intercourse. The provision itself talks of deceit in general, and deceit by making a false promise to marry in particular. In circumstances where the said deceit is much more easily decipherable – for example, if deceit takes the form of hiding one’s identity, sexual health, marital status, etc—prosecution through leading the necessary evidence would be a relatively straightforward task. The real difficulty, however,— which also existed under the IPC—lies in prosecuting a case where the woman alleges consent being obtained through a false promise of marriage. The difficulty arises because marriage in the future might not be possible because of various reasons In such a case, the court is faced with the dilemma of whether the promise was fallacious from the beginning or if it turned into one in the due course.

This was in regard to the practicalities of the black letter of the law itself. How the law addressed societal flux and demonstrably changed notions of sex and marriage is a different question altogether. The provision seems to lie at the crossroads of India’s societal flux. The logic and demand of this provision however make sense in India’s conflicting social realities; Indians may be having pre-marital sexual intercourse but it is not without its taboos. The patriarchal notion of attaching honour to a woman’s chastity hasn’t disappeared. In that context, the provision merely responds to India’s social realities.

The flipside lies in the relevance of the provision itself. It can be argued that the basic folly at hand is in the encasing of sexual intercourse and consent within the strict confines of marriage – which is further bolstered by the fact that non-consensual sexual intercourse within marriage is still not considered Rape under BNS. When more and more individuals are cohabitating or having consensual intercourse outside the purview of marriage, it can be argued that the principle behind the provision does not seem to align with India’s changing social sensibilities. At the end of the day, a failed pre-marital relationship simply should not be seen to have vitiated everything that happened during the relationship. Furthermore, the existence and wording of the provision itself can be seen as infantilising towards women and denuding them of their autonomy. This is particularly relevant in situations where families who disapprove of a relationship may misuse the provision. In doing so, the provision gives such unapproving families the opportunity to denude women of their sexual autonomy and inflict the horrors of the Indian Criminal Justice System on the unwitting man. There are also a non-trivial number of situations where the provision under IPC may have been invoked against men falsely and the same cannot be ignored. The provision, whether intentionally or not, does bundle sexual autonomy, consent, and marriage together rather inelegantly and it has rightfully been subjected to feminist criticisms on that ground. How this provision plays out in our still-evolving world remains to be seen.

Sexual Violence against Queer Indians – No cause or case?

As the marathon hearing in the Marriage Equality case was going on before the Supreme Court, a notable advocate arguing against the case of the Petitioners made a rather pointed remark, paraphrased here – ‘The Petitioners may have a cause, but they do not have a case.’ This remark was made in a more technical context and the Supreme Court did end up edifying this remark into the final judgment. Much was written about the validity of the demand but the Supreme Court held its hand back in giving any meaningful relief in this case.

The present government seems to have taken this remark to heart and gone a step further. When the draconian Section 377 of the IPC that criminalised ‘unnatural sexual intercourse’ was read down by the Supreme Court, it decriminalised consensual intercourse between same-sex individuals, thereby, reducing its scope to criminalizing only nonconsensual sex and bestiality

BNS has completely removed this provision. Upon the tabling of the bill before the parliament, the Parliamentary Standing Committee specifically recommended the re-introduction of this provision in some form so that nonconsensual intercourse among same-sex individuals, transgenders or animals would continue to remain a crime. The Government seems to have decided that queer individuals have no cause or case by not acceding to this suggestion and leaving a swarth of queer citizens without any recourse in criminal law in the event they face sexual violence. Queer individuals already faced systemic difficulties in reporting, let alone prosecuting, sexual assault under the IPC. The complete elimination of this provision is a significant backsliding event, even by the standards of the present regime which has tried to clamp progress in queer rights movement. 2023 turned out to be an annus horribilis for queer citizens.

Conclusion

The enaction of BNS was not a necessary requirement. Any changes contemplated by the government could have been achieved by making amendments to the IPC. Brute parliamentary majorities, however, do not leave much space for contrarian opinions. The “new” Act is our new reality. How Section 69 pares with our changing social dynamics is for posterity to record. Not criminalising sexual assault against queer individuals however is a deliberate choice that relegates queer individuals to a half-realized citizenship. As a queer lawyer, it is hard to not see this step as yet another betrayal of the constitutional contract between queer citizens and the state. Perhaps this will be corrected in the future. For now, we live with and agitate against this new reality.