This Draft Bill Proposes Criminal Reforms For Unnatural Sex, Adultery

In a significant stride towards modernising the Indian legal framework, the Bharatiya Nyaya Sanhita (BNS) Bill has been unveiled as a comprehensive replacement for the outdated British-era Indian Penal Code (IPC). The proposed BNS Bill has garnered attention for its strategic elimination of two controversial provisions that were diluted and struck down by the Supreme Court in 2018.

At the heart of this legal overhaul lies a strategic elimination of contentious provisions that had stirred debates and judicial battles, creating ripples of change that reverberate through the nation's judicial framework.

Contentious Provisions on Unnatural Sex and Adultery Overhauled

One of the most notable changes within the BNS Bill is the omission of contentious provisions on unnatural sex and adultery, both of which had previously generated heated debates and legal battles. 

The erstwhile Section 377 of the IPC criminalised "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

In 2018, a five-judge Supreme Court bench partially decriminalised this section, rendering it inapplicable to consenting adults. 

However, the clause to deal with unnatural sexual offences against minors, against their consent, and bestiality remained in the statute book. The BNS Bill takes this a step further by entirely removing any mention of "unnatural sex," marking a pivotal shift in legal attitudes towards personal relationships.

Furthermore, Section 497 of the IPC, which stated

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

The law had treated adultery as a criminal offence for men but excluded penalties for women, which was abolished by a unanimous Supreme Court decision in 2018. 

The BNS Bill wholly discards any provisions related to adultery, reinforcing the concept that marital disputes are better addressed within the civil framework rather than the realm of criminal law.

Suicide Decriminalisation and Enhanced Support

The BNS Bill also reflects evolving societal perspectives by reframing the treatment of attempted suicide. 

While the IPC previously classified suicide attempts as a punishable offence under Section 309, the Mental Healthcare Act of 2017 laid the groundwork for a more compassionate approach by emphasizing mental health support over punitive measures. 

Section 115 of the Mental Healthcare Act of 2017 established a presumption of extreme stress in the case of a suicide attempt.

It said that, notwithstanding anything in Section 309 of the Indian Penal Code, any individual who attempts suicide shall be deemed to be suffering from severe stress, unless proven otherwise, and shall not be tried or punished under the said Code.

It further stated that the competent government has an obligation to give care, therapy, and rehabilitation to a person experiencing severe stress and attempting suicide in order to limit the likelihood of the recurrence of the attempt.

The BNS Bill maintains this compassionate stance, omitting any mention of a separate offence related to attempted suicide as outlined in the IPC's Section 309. 

Instead, the bill introduces provisions for addressing cases where attempted suicide is used to coerce or hinder public servants from fulfilling their duties.

According to Section 224 of the BNS Bill,

"Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both or with community service."

An Attempt towards Comprehensive Justice

The BNS Bill makes several other noteworthy amendments aimed at reflecting contemporary societal values and addressing emerging challenges. 

Notably, it proposes new provisions to address crimes such as mob lynching and rape of minors, with capital punishment as the maximum penalty. 

The bill also introduces a clear definition of terrorism, which was notably absent from the IPC, laying the groundwork for more precise legal interpretation and prosecution in cases involving acts of terrorism.

As per provision 111 of the BNS Bill,

"A person is said to have committed a terrorist act if he commits any act in India or any foreign country with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order by doing an act...."

Section 124-A of the IPC deals with the offence of sedition and stipulates a sentence of life imprisonment or imprisonment for up to three years, with a fine attached.

Provision 150 of the BNS Bill, under the chapter on offences against the state, discusses activities compromising India's sovereignty, unity, and integrity.

"Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; "or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine." 

In terms of the length and scope of the legislation, the BNS Bill, comprising 356 provisions, streamlines the IPC's 511 sections, making it a more concise and coherent legal framework for India.

The introduction of the Bharatiya Nyaya Sanhita (BNS) Bill marks a pivotal moment in the evolution of India's legal system, shedding archaic and contentious provisions while attempting to embrace a more compassionate, modern, and comprehensive approach to justice. 

Views expressed by the author are their own.

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