New BNS Bill proposes to do away with IPC provisions on unnatural sex, adultery

The Bharatiya Nyaya Sanhita (BNS) Bill which is proposed to replace the British-era Indian Penal Code (IPC) does away with two contentious provisions on unnatural sex and adultery that were diluted and struck down respectively by the Supreme Court in 2018.

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

On September 6, 2018, a five-judge bench unanimously decriminalised a part of Section 377. However, the provision still stood in the statute book to deal with unnatural sexual offences against minors, against their consent and bestiality. In the new BNS Bill, there is no provision on "unnatural sex".

On September 27, 2018, a five-judge bench of the Supreme Court unanimously struck off from the statute books Section 497 of IPC which made adultery a criminal offence for men but did not penalise women.

Under Section 497, "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 top court had said that acts of adultery will not qualify as a crime, although they would still be grounds for civil action and divorce. Under the BNS Bill, there is no provision related to the offence of adultery.

Attempt to commit suicide was a punishable offence under Section 309 of the IPC until the passing of the Mental Healthcare Act in 2017, which in effect decriminalised suicide by creating a massive exception to Section 309.

Under section 115 of the Mental Healthcare Act of 2017, there was a presumption of severe stress in case of an attempt to commit suicide.

It said that notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.

It further said the appropriate government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

However, in the BNS Bill, 2023, there is no mention of the separate offence of an attempt to commit suicide as in section 309 of IPC.

The new bill does have Section 224 which criminalises an attempt to commit suicide to compel or restrain exercise of lawful power.

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." There are similar other various provisions related to defamation and offence against women, which are being sought to be changed.

One of the highlights of the BNS Bill, 2023 is that it seeks to repeal the offence of sedition under the IPC and provides capital sentence as the maximum punishment for crimes such as mob lynching and rape of minors.

While the IPC has 511 sections, the BNS Bill contains 356 provisions.

Under the IPC, Section 124-A deals with offence of sedition and prescribes a sentence of life imprisonment or imprisonment which may extend to three years, to which a fine may be added.

In the BNS Bill, provision 150 under the chapter pertaining to offences against the State talks about acts endangering the sovereignty, unity and integrity of India.

"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," section 150 of the BNS Bill says.

While the punishment for the offence of murder is covered under Section 302 of the IPC, it has been covered under Provision 101 of the BNS Bill. The punishment for murder, that is life term or death sentence, remains unchanged.

The new bill proposes to make mob lynching a separate offence.

As per provision 101 (2) of the BNS Bill, "When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine." Similarly, the BNS Bill seeks to make a new provision on "snatching" under Section 302 which says, "Theft is 'snatching' if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any moveable property." The Bill says that whoever commits snatching shall be punished with imprisonment of up to three years and shall also be liable to a fine.

For the first time, the word terrorism has been defined under the BNS Bill which was not there under the IPC.

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…." As per the IPC, the offence of defamation carries a punishment of simple imprisonment of up to two years or a fine or both.

Now, in the BNS Bill, the offence of defamation carries a simple imprisonment of up to two years or a fine, or both or with community service.

In the chapter on sexual offences against women and children, the BNS Bill says in Section 69, "Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine." It explained that "deceitful means" shall include the false promise of employment or promotion, inducement or marrying after suppressing identity.