Punishment for Rape under the Bharatiya Nyaya Sanhita, 2023

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Introduction

Rape is a despicable and heinous violation of a woman’s physical sanctity and dignity. It violates the victim’s fundamental right under Article 21 of the Indian Constitution which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It shatters her physical and psychological well-being, inflicts profound emotional distress, and leaves her in a state of living death. In India, the offence of rape is governed under the provisions of the Indian Penal Code, 1860 (IPC) including Sections 375 and 376. This colonial-era criminal law somehow fails in certain scenarios because society has evolved in various aspects; therefore, to improve India's overall criminal justice delivery landscape as well as to protect women from sexual offences, Bharatiya Nyaya Sanhita, 2023 (BNS, 2023) was proposed. This law was introduced to replace the long-standing law IPC, 1860. In this article, we will explore the punishments for the offence of rape under the new criminal law, Bharatiya Nyaya Sanhita, 2023.

Bharatiya Nyaya Sanhita, 2023

This law received assent from the President of India on December 25, 2023. July 01, 2024, is the date notified by Home Minister Amit Shah for the enforcement of Bharatiya Nyaya Sanhita, 2023. The following Section of the article will deal with important provisions regarding rape under the BNS, 2023.

Rape: Provisions under the BNS, 2023

• Section 63:  This Section defines the term ‘Rape’. It illustrates that “A man is said to commit “rape” if he—
  • penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
  • inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
  • manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
  • applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

1. against her will; 
2. without her consent; 
3. with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt; 
4. with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; 
5. with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; 
6. with or without her consent, when she is under eighteen years of age; 
7. when she is unable to communicate consent.”

• Section 64: Section 64 of the Bharatiya Nyaya Sanhita deals with punishment for rape. Section 64(1) states that “Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.” whereas Section 64(2) states that “Whoever,-
  • being a police officer, commits rape,—
    • within the limits of the police station to which such police officer is appointed; or
    • in the premises of any station house; or
    • on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
  • being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
  • being a member of the armed forces deployed in an area by the Central Government or a State Government commits rape in such area; or
  • being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
  • being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
  • being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
  • commits rape during communal or sectarian violence; or
  • commits rape on a woman knowing her to be pregnant; or
  • commits rape, on a woman incapable of giving consent; or
  • being in a position of control or dominance over a woman, commits rape on such woman; or
  • commits rape on a woman suffering from mental or physical disability; or
  • while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
  • commits rape repeatedly on the same woman,”

should be punished with rigorous imprisonment for a term not less than 10 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person’s natural life and a fine.

• Section 65: This Section highlights punishment for rape in certain cases. Section 65(1) states that whoever commits an offence of rape on a woman under 16 years of age should be punished with rigorous imprisonment for a term not less than 20 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person’s natural life, and a fine provided that such fine should be paid to the victim and should be a reasonable amount to meet the medical expenses and rehabilitation of the victim. On the other hand, Section 65(2) illustrates that whoever commits rape on a woman under 12 years of age should be punished with punishment mentioned in sub-section (1) or with death.
• Section 66: Whoever commits an offence of rape and causes the death of the woman or causes her to be in a persistent vegetative state should be punished with rigorous imprisonment for a term not less than 20 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person’s natural life, or with death.
• Section 67: As per this provision, sexual intercourse by a husband with his wife during separation and without her consent should be punished with imprisonment for a term not less than 2 years but may extend to 7 years and also be liable to fine.
• Section 68: This Section of BNS deals with sexual intercourse by a person in authority being in a position of authority or a fiduciary relationship, or a public servant, or superintendent or manager (of jail, remand home, women’s institution, or children’s institution or other place of custody established under any law), or on the management of a hospital or being on the staff of a hospital. It states that if a person in authority abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, should be punished with rigorous imprisonment for a term not less than 5 years but which may extend to 10 years and a fine.
• Section 69: This section illustrates that if an individual who by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same has sexual intercourse with her, such sexual intercourse does not amount to the offence of rape, should be punished with imprisonment which may extend to 10 years and should a fine.
• Section 70:  It deals with the punishments for the offence of Gang rape. 
  • As per Section 70(1) of the BNS, “Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine. Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this sub-section shall be paid to the victim.”
  • As per Section 70(2) of the BNS, “Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death. Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this sub-section shall be paid to the victim.”

Apart from these provisions, the new law BNS, 2023 also defines punishment for repeated offenders for an offence of rape under Section 71. It states that if a previously convicted person of an offence punishable under Sections 64, 65, 66, or 70 of BNS commits the same offence and is convicted under the same Sections then they should be punished with imprisonment for life which should means imprisonment for the remainder of that person’s natural life, or with death. Moreover, the law also punishes those who disclose the identity of a victim of certain offences, etc., and those who print or publish any matter relating to Court proceedings without permission under Section 72 and Section 73 respectively.

Important Supreme Court Verdicts on Rape

• Tukaram and Anr. vs. State of Maharashtra (September 15, 1978) 
• Vishaka vs. State of Rajasthan and Ors. (August 13, 1997)
• Deepak Gulati vs. State of Haryana (May 20, 2013) 
• Mukesh & Anr. bvs. State of NCT of Delhi & Ors. (May 05, 2017) 
• Independent Thought vs. Union of India (October 11, 2017) 

Conclusion

This article provides a brief overview of laws related to rape in the new law, the Bharatiya Nyaya Sanhita, 2023. As per new law, an offence of rape is said to be committed if a man with or without consent commits rape of a woman under 18 years of age which was 15 years in the Indian Penal Code, 1860. Also, the BNS, 2023 defines punishment for rape of women under 12 years and 16 years into a single section that is Section 65. Overall, the Bharatiya Nyaya Sanhita, 2023 ensures to protect and safeguard the lives of Indian citizens as well as improves fairness and transparency in the legal process.