What Bharatiya Sanhita Bills Mean For Women? Legal Experts Weigh In

India witnessed a historic moment as three transformative bills—the Bharatiya Sakshya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, and the Bharatiya Nyaya Sanhita, 2023—replaced the age-old Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Evidence Act. With President Droupadi Murmu's assent, these bills are now law, sparking conversations about their implications for Indian citizens. 

Despite the bills passing through the crucible of parliamentary scrutiny, questions loom over their significance and impact. To explain these complexities, SheThePeople engaged in an exclusive conversation with legal luminaries Pragya Palawat and Amrita Garg to decipher what these monumental changes signify for the people of India.

Repeal of Section 377: A Halfway Victory for Equality

• The Bharatiya Nyaya Sanhita completely dismantles Section 377, a provision infamous for criminalizing non-consensual sex acts against men, trans people, and animals.

Women's Rights Lawyer Pragya Palawat from the Supreme Court shared insights on the exclusion of provisions akin to Section 377 in the Bharatiya Nyaya Sanhita. While applauding the decriminalization of consensual acts between adults, Palawat highlighted a glaring gap. The absence of protection for men and trans people and the omission of laws against sexual offences towards animals create a legal vacuum.

To simplify, the new Act states that only men are capable of raping and only women are capable of being raped. This omission leaves men, transpeople and women abused by women or transpeople with no legal remedy under the punitive law laid down in the proposed bill The earlier law encompassed punitive actions against anyone who had or attempted carnal intercourse with an animal, with imprisonment upto 10 years and a fine, whereas in the proposed Bharatiya Nyaya Sanhita, there is no section or chapter pertaining to the sexual crime against animals. Our country is a welfare state, so such an omission is huge blunder by legislators.

Amrita Garg, an advocate from the High Court of Punjab and Haryana, emphasizes the legal significance of this omission. She points out that the exclusion of Section 377 leaves victims of non-consensual acts without recourse under criminal law, raising concerns about justice for individuals facing forced anal sex or bestiality.

Section 377 provision was also being used by married women to deal with forced anal sex as well as to book people for bestiality. Its exclusion would leave victims of these offences without any remedy under criminal law.

Inclusion of Transgender in Legal Definitions: A Step Towards Equality?

• Article 14 of the Indian Constitution ensures two fundamental rights for all citizens: (a) Equality before the Law and (b) Equal protection of the law. The proposed bill's inclusion of transgender individuals in the definition of gender, as per Section 2(10), is a crucial step, guaranteeing equality before the law for transpeople in general crimes. The bill specifies that the pronoun 'he' applies to all genders—man, woman, and transpersons—ensuring equal application of the Bhartiya Nyaya Sanhita's sections.

Garg acknowledges this as a welcome culmination of past events, rooted in the Transgender Persons (Protection of Rights) Bill, 2019, and the landmark SC judgment of 2014. However, she raises a poignant concern: the silence on sexual offences against transgender individuals, signalling potential gaps in their protection under the revamped legal framework.

The inclusion of transgender individuals within the definition of ‘gender’ in the BNS is a welcome culmination of these events; however, the new laws are still silent on sexual offenses against such individuals.

Examining the impact of including transgender individuals in the definition of 'gender,' Palawat noted the positive step toward equality. However, she also astutely points out the disparity in protection against sexual crimes for trans people, highlighting a discriminatory gap in comparison to crimes against women.

The biggest loophole in this guarantee is that since sexual offences are only deemed to be inflicted on a body of woman and child in an exclusive chapter 5 of the Bill, the primary element of this right, which is the equal right to sue and be sued, to prosecute and be prosecuted, is clearly not guaranteed.  Moreover, the second element of the fundamental right of equal protection of the law is not guaranteed to trans people, as sexual crime against them does not find a place in the entire bill. Even if we read the proposed bill with the present Transgender Persons (Protection of Rights) Act 2019, the maximum punishment for a sexual offence against a transperson is only 2 years of imprisonment, whereas for the same act of rape against a woman, the minimum punishment is 10 years of imprisonment in Bhartiya Nyaya Sanhita. Hence, there is clear discrimination and violation of fundamental rights.

Palawat also underlines the need for awareness, sensitization of officials, and proper representation to ensure the guaranteed rights don't remain mere words on paper.

Decriminalization of Homosexuality and Adultery

Palawat supports the decriminalization of homosexuality and adultery, considering it a reflection of evolving societal norms. She advocates for individual rights, asserting that preferences in partners should be a matter of personal choice rather than legal scrutiny.

Law roots from morality, but all morals cannot be law. In a dynamic world of ever-changing acceptable norms and value systems, it is only natural that the obsolete values of yesteryear be amended and altered if they get assimilated in the legal system. In my opinion, these are individual choices, preference of partner should be a matter of right of an individual and only when such an observation is made by the most brilliant of legal minds in country, such observations become judgments and judgments become law, in turn law gives societal acceptance and inclusion. 

While celebrating the decriminalization of homosexuality and adultery, Garg also critiques the wholesale removal of Section 377. In her view, the government missed a crucial opportunity to address marital rape.

While the decriminalisation of homosexuality and adultery is a welcome change, it has also become a classis case of throwing out the baby with the bathwater, as Section 377 has been removed in its entirety. Moreover, the Government could have used this opportunity to criminalise marital rape, thereby truly bringing the criminal laws into the 21st century. 

Changes in the Definition of 'Victim'

Reflecting on the expansion of the 'victim' definition in Bharatiya Sakshya Adhiniyam, Garg sees promise in its potential to enhance victim rights. However, she notes a missed opportunity to streamline victim protection schemes.

While the new BNSS expands the definition and participatory rights of victims, there was an opportunity to streamline and make the victim protection, compensation and rehabilitation scheme more effective, in that interim measures akin to those available under the SC/ST Act (Section 15A) could have been incorporated in the provisions already available under Section 357 A CrPC (now Section 396 of the BNSS). 

Palawat highlights key additions, such as recording statements at the victim's residence and the right to be informed about various stages of proceedings.

• Section 176, procedure of investigation in an offence of rape, now requires that the recording of the statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality and such statement may also be recorded through any audio-video electronic means including mobile phone.
• Right of the victim to be informed regarding the various stages of proceeding is a pivotal right and this has been protected by the addition of sec 193 and sec 230 wherein the Police officer carrying on the investigation is under a legal obligation to furnish a copy of all recorded statements, confessions, admissions, FIR and Report of the Police Officer. 
• One of the most critical changes is that withdrawal of prosecution will only be allowed after hearing the victim.
• Another critical insertion is that the Bill provides for a witness protection scheme to be laid down by the State Government which provides that a court can grant compensation when passing a sentence, which includes payment of a fine. 
• While applauding these changes, she notes that safeguarding victim rights would be more comprehensive if extended to the sentencing stage, allowing victims to submit impact statements at the sentencing stage.

As India steps into a new era of justice, the resonance of these criminal bills permeates society. Celebrating progressive changes must coexist with scrutinizing potential gaps and unexplored opportunities.