Authored By: Tejasvi Gour
Des Shri Navalmal Firodia Law College, Pune
INTRODUCTION
Crime is a social phenomenon. There is no fixed rule for the determination of crime. Crime is what the ‘law’ says it is. It can emerge into various social spheres, and one such sphere includes violence against a particular gender. “Gender”, a term coined to describe the general aspirations of society for men and women. When such aspirations are not fulfilled, it leads to various gender based violence or discrimination. In the times of progressive societies, crimes have also become progressive, taking new forms in different scenarios.
According to the report of Ministry of statistics and Program Implementation on Men and Women in India, 2018, crime committed against women in Rape, Kidnapping & Abduction and assault on women with intent to outrage her modesty has been gradually increased. Cruelty by husband and relatives remains the highest crime committed against women, amounting to a total of 33%. While the percentage of suicides during 2015 was 67% and 71% among married persons for men and women, respectively.[1]
As India is a male-dominated society, the laws in the country are therefore biased towards the women. But in recent times, violence against men has taken a drastic toll, highlighting the need to make more victim-centric laws rather than laws that are gender biased.
Keeping the same need in mind, new criminal laws were introduced, majorly focusing on modernisation, efficiency, victim victim-centric approach and removing the colonial traces from our legal systems of India. The new criminal laws, i.e. Bharatiya Nyaya Sanhita (BNS)[2], Bharatiya Nagarik Suraksha Sanhita (BNSS)[3] and Bharatiya Sakshya Adhiniyam (BSA),[4] replaced the Indian Penal Code[5], Criminal Procedural Code[6] and Indian Evidence Act,[7] respectively. Through this article, we will be dealing with all the developments introduced, along with identifying certain ambiguities that exist in these new laws.
THE “STEP FORWARD”:
Progressive Provisions for Gender Rights
By introducing more structured definitions and streamlined procedures, the aim is to make India’s legal system more aligned with social issues and contemporary and technological realities.
The BNS 2023 has incorporated new forms of offences, including various cyber crimes and frauds. One of the intriguing changes includes the incorporation of community services as a punishment for petty offences, which aims at aiding the infrastructural and procedural burden on our reformative systems.
CLARIFICATION AND CONSOLIDATION OF THE OFFENCES
The recategorisation and reclassification of provision related to gender based offences were embodied in the new codes. It is crucial to note that in IPC, the sexual offences were categorized in merely nine sections– section 375, section 376, section 376A, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376 E[8] whereas if we look towards the key provisions related to sexual offences in the BNS- the provisions are framed and well defined into more specific types of offence which were absent in the IPC[9]
The BNS includes-
Section 63 (Sexual Assault and Aggravated Sexual Assault) adopts a more expanded definition of assault and clarifies the meaning of consent in more detail, as well as includes other nonconsensual sexual acts that were initially not included in the old codes.[10]
Section 64 (Punishment of Rape), this section as compared to earlier section of IPC is made more stringent. Earlier the punishment for rape included imprisonment up to 10 years which may extended to imprisonment for life but with new changes the punishment for rape is enhanced to imprisonment for life for every individual convicted for the offence of rape.[11]
Section 65 (Punishment for Rape in certain cases), this section specifically provide punishment for the rape of a minor. In the earlier code, no such provision was there specifically focusing on minors. This section has explicitly mentioned rape of minor under twelve years and sixteen years of age is punishable with imprisonment of at least 20 years along with the penalty which shall be paid to the victim. Thus providing the clarity for serving he justice which was absent earlier.[12]
Apart from this, a whole new chapter is added in the BNS explicitly focusing on criminal force and assault against women. Earlier, all these offences were scattered and misaligned leading to difficulty in rendering justice, but with new criminal laws, all the offences are clubbed together to give a more definite structure to the law governing these offences.
ADDRESSING THE EMERGING GAPS
Section 69 (Sexual intercourse by employing deceitful means, etc.)[13], this section is new addition in the offence of sexual assault, which highlights the punishment for having sexual intercourse even with her consent shall be liable under this section if such intercourse is obtain through false promise to marry, to provide any employment or promotion or any other deceitful means. This section aims at curbing the offences leading to usage women and further enhancing the safety of women.
Various gender neutral provisions are used in the BNS, for instance, the use of the word “child” in the definition of kidnapping bridges the gap that was faced earlier by various individuals. Here, the term child refers to any person below 18 years of age, thus making such provisions more inclusive.
In the old criminal laws, the offence of kidnapping could not be booked against a boy of seventeen years of age, whereas the same can be booked for a girl of seventeen years of age. To bridge that gap, a gender neutral term is incorporated to prevent such discrimination.
Further, in the new laws, the definition of “gender” is enhanced to include the term transgender in its definition.[14]
STRICT TIMELINES FOR SPEEDY DISPOSAL OF CASES
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced strict timelines for the various procedures involved in investigation, submission or serving of people. In the criminal procedural code, these timelines were absent, leading to cases going on of cases for long periods. This also increased the problem of delayed justice and corruption in our legal system.
Some of the new timelines incorporated in BNSS are –
Section 184(6)[15] – Submission of medical report for rape victims – timeline for submitting report was absent and the same was addressed by giving new timeline i.e. after 7 days of examination
Section 230 [16]– Supply of Relevant documents to victim – According to this section, documents shall be provided within 14 days of production or appearance of the documents. No timeline was specified in the old procedures
Section 258[17] – Pronouncement of justice – this section explicitly states that the judgment should be provided 30 days from completion of arguments, which is extendable to 45 days in certain cases.
Section 251(b) and Section 263[18] – Framing of Charges – the charges shall be framed 60 days from the first hearing of the charge.
Various clarifications and timelines are adopted in the new criminal laws. The gaps that were present earlier are addressed by the new criminal laws so that the judiciary and legal structure of India can be more speedy, accurate and streamlined.
THE “SIDESTEP”: Potential ambiguities and regressions
THE DORMANT ISSUE: MARITAL RAPE
Though the new criminal laws have addressed various gaps but there are still a few issues that were untouched by the new laws. One such issue among these is marital rape. The new laws although included various provisions for safety of women and aimed at providing the more stringent punishment for various offence yet it didn’t put any light on the debated issue of marital rape. No provision or guidelines were introduced to discuss the consequences of such an offence. The exception is still maintained in the Section 63[19] of BNS that sexual acts with wife will not amount to rape.
The only changes made to that exception included increasing of age of the wife from 15 years to 18 years. The Supreme Court has argued against the marital rape by stating that marriage is sacred institution and it cannot be criminalized. The Supreme Court has given more significance to the institution of marriage in its argument, leaving such offences as a free pass for individuals to satisfy their needs. [20]
OBSCURITY CONCERNING NEW SECTIONS
The incorporation of section 69 of BNS[21] is appreciated, but at the same it opens the gate of potential misuse of such individuals. The broadness of the section itself is a positive as well as a negative aspect of the use of this section.
The main blur occurs with the use of the term “deceitful means” and “false promise of marriage”. In section 375 of IPC[22] a person can be convicted for the offence of the rape under “misconception of fact” but due to the addition of new section, a person cannot be booked under the offence of rape if it has obtained sexual intercourse through fake promises or deceitful means thus exposing the victim to more sexual exploitation. Whereas if we look at the other side, this section also leads to the misuse by individuals, as the terms are very vague and are not definite.
EVIDENTIARY CHALLENGES IN BHARATIYA SAKSHYA ADHINIYAM (BSA)
Chapter V, Sections 61-65[23] deal with the admissibility of electronic evidence. One of the intriguing things to note is that with new evidentiary laws, electronic evidence like SMS, websites, texts, chats, etc., has become valid and legal evidence for proving certain offences. But it can create difficulty for people who are technologically illiterate to preserve and store such electronic evidence. Further, with an increase in cybercrimes, it is very easy to manipulate electronic data and evidence, thus impacting the credibility of victims’ testimonies.
Further newly added section 69 of BNS isn’t clear on whom the burden of proof would lie in cases of deceitful means, whether on the victim or the prosecution. This ambiguity makes it difficult for the evidence collection on such matters, as in all other sexual offences, it is presumed that consent was absent in such scenarios.
Chapter IX, Section 146 of BSA[24] deals with the credibility of the witnesses. The main point of contention is that the whole BSA heavily relies on the general rules about impeaching the credibility of a witness. This makes it difficult on the part of the victim who is traumatised or has faced any mental hurt, especially in cases of sexual violence. It might be the case that such a victim may not be able to maintain the same statements and facts in multiple testimonies, leading to the use of their testimonies against themselves.
UNDERLYING DISCOURSE AND BROADER INFERENCES
The constant tussle between protection and liberty continues. The role of the state in protecting individual liberty, along with maintaining personal liberty, is crucial. Whenever a new law comes into force, these debates spark, as was the case with these new laws, where protecting gender rights and over-criminalisation of individual liberties are at concern, especially in the cases of sexual offences.
Further, it also highlights how socio-cultural phenomena shape the laws and how deeply rooted patriarchal norms play a crucial role in framing laws for a particular gender. The societal attitudes shift the patterns of behaviour, leading to constant amendments in the existing laws as per the needs of the society.
CONCLUSION
The new laws no doubt have solved certain complexities and tried to bridge the gaps between the existing in the legal system by incorporating new advancements and new gender neutral terms. Gender neutral terms have become the essential part of the Indian legal system with a surge of sudden offences in both the areas of gender . But this step is not all that we need; we need more comprehensive discussions on different laws which permits us to eliminate various ambiguities present in the justice mechanism of India. We appreciate the role of our state to make laws as per the needs of the common man but it is equally important to have a keen eye on whether the needs of the society are actually being fulfilled. Thus it concludes that the sidestep or step forward of these laws can be fundamentally decided only when the aim of these new laws is achieved and has served the people with the purpose for which they were initially enforced.
REFERENCE(S):
[1] Ministry of Statics and Program Implementation <https://mospi.gov.in/sites/default/files/publication_reports/Women%20and%20Men%20%20in%20India%202018.pdf > accessed on 14 July, 2026
[2] Bharatiya Nyaya Sanhita, 2023
[3] Bharatiya Nagarik Suraksha Sanhita, 2023
[4] Bharatiya Sakshya Adhiniyam, 2023
[5] The Indian Penal Code, 1860
[6] The Code of Criminal Procedures, 1973
[7] The Indian Evidence Act, 1872
[8] Sec 375, 376, 376A, 376B, 376C, 376D, 376DA, 376DB, 376E of Indian Penal Code, 1980
[9] (supra)
[10] Section 63, Bharatiya Nyaya Sanhita, 2023
[11] Section 64, Bharatiya Nyaya Sanhita, 2023
[12] Section 65, Bharatiya Nyaya Sanhita, 2023
[13] Section 69, Bharatiya Nyaya Sanhita, 2023
[14] Gender neutral offences under BNS <https://www.bing.com/videos/search?q=specific+provisions+in+bns+which+explicitly+define+gender+based+offences&view=detail&mid=B5F6B21402BABD202885B5F6B21402BABD202885&mmscn=stvo&FORM=VIRE > accessed on 16 July, 2026
[15] Section 184(6), Bharatiya Nagarik Suraksha Sanhita, 2023
[16] Section 230, Bharatiya Nagarik Suraksha Sanhita, 2023
[17] Section 258, Bharatiya Nagarik Suraksha Sanhita, 2023
[18] Section 251(b) and section 263
[19] (supra)
[20] The Hindu Bureau, ‘Supreme Court defers hearing pleas seeking criminalization of marital rape’ ( 23 October,2024)< https://www.thehindu.com/news/national/supreme-court-on-marital-rape-exception-hearing-oct-23/article68781795.ece > accessed on 16 July, 2026
[21] (supra)
[22] Section 375 of Indian Penal Code, 1980
[23] Chapter V, section 61-65, Bharatiya Sakshya Adhiniyam,2023
[24]Chapter IX, Section 146, Bharartiya Sakshya Adhiniyam, 2023
