Opinion
Our criminal laws must uphold gender justice
Summary
A trio of bills to replace a colonial-era framework has taken up long overdue reforms but parts that are not in sync with the rights of women and promise of equality need a rethink
A stack of new Bills awaiting Lok Sabha clearance includes a trio set to replace India’s colonial-era criminal laws. The Indian Penal Code (IPC) of 1860 is to be replaced by the Bharatiya Nyaya Sanhita Bill of 2023; the Code of Criminal Procedure of 1898 will likely be supplanted by the Bharatiya Nagrik Suraksha Sanhita Bill; and the Indian Evidence Act of 1872 might have the Bharatiya Sakshya Bill take its place. All three have been referred to a parliamentary panel, whose report is expected in the next session of Parliament. The government cannot be faulted for its intention to modernize our criminal justice system. Among other things, the proposed revisions would update key interfaces to the digital age, make it easier for people to file complaints, speed up legal processes and deploy community service as a form of punishment for light offences. Reforms are crucial in a country where knocking on the doors of courts can be a challenge, a backlog of cases has slowed justice delivery to a crawl and our prisons are overrun with under-trials. The basic draft of the penal book in force dates back to more than a century and even a cursory read would reveal a need to revise our laws. Some of the Centre’s proposals, however, seem to have emerged from a similar crucible, with control as an operative impulse.
Consider the safety of women. The Bharatiya Nyaya Sanhita (BNS) features stricter and wider ranging provisions for offences against women and children, with an entire chapter dedicated to these. Under the IPC, such crimes are under a larger chapter on offences “affecting the human body." The language and tone of the revisions that may get encoded under the BNS, however, betray a binary view of gender that holds fast to the notion of women’s honour being in need of preservation, rather than women being treated as equals. Despite a focus on “protection of women," marital rape would still not be a crime, unless the wife is below 18, the age of consent. The archaic assumption that a married woman is the property of her husband, and that marriage equals irrevocable lifelong consent to sex on demand, therefore looks set for another lease of life, leaving women little control over their sexual and reproductive rights. This, despite India’s tightening of laws on violence against women and the Supreme Court’s taking up of petitions that seek to outlaw wedlock rape. In a society of equal rights, consent must always be in real-time, regardless of all else. Any carve-out implies an individual can legally be deprived of free will—literally objectified, i.e.
In some places, the wording is a giveaway. Section 73 of the BNS, for instance, describes acts of assault in terms of “intending to outrage or knowing it to be likely that he will thereby outrage her modesty." Intended or not, such words reflect regressive ideas of women’s behaviour, chastity and defilement, and do not speak in terms of women’s rights. The Bills offer little recourse for men or non-binary citizens who face similar violations. Lack of clarity in some other clauses also requires a rethink. Outlawing “deceitful means" for marriage, for example, will create new grey zones in judging guilt. Importantly, outdated barriers of matrimony should have no role in deciding what’s lawful. What we need is to rid the country’s crime book of its unjust relics, especially the diktats of patriarchy. We need laws that can safeguard us in a manner consistent with the imperative of gender justice. At the very least, what we enact must assure everyone equality.
