Introduction
Equality among citizens on the basis of gender is one of the basic fundamental rights guaranteed by the Constitution under Article 14. So, gender justice basically means equality among all citizens, irrespective of their gender. Equal opportunity in education, employment, justice, and health should be created for all genders. Many efforts have been made by NGOs or human rights groups to ensure gender equality and justice.
Under IPC
About 150+ provisions were added by the legislature for the protection of women against crimes, particularly those pertaining to sexual offences. Sections 352 to 509 of IPC intend to protect women from crimes wherein the perpetrator is male and the victim is female.
Offences such as dowry death under Section 304B and cruelty by husband or relatives under Section 498A were made punishable to extend protection to married women from the cruelty of their husbands or in-laws.
However, Sections 375, 376, 376A, 376B, 376C, 376D, and 376E make rape and gang rape a punishable offence, ensuring the safety of women. Section 354 of the Act protects women’s modesty, wherein 354A, 354B, 354C, and 354D were added by amendments to ensure the protection of women from sexual harassment, assault done to disrobe women, voyeurism, and stalking, respectively.
In the year 2013, after the gruesome Nirbhaya rape case, Sections 326A and 326B were added to protect women from acid attacks. Section 366B was also added by Parliament to prohibit the importation of girls up to 21 years of age.
How BNS is different from IPC?
Under BNS, certain new provisions were added by the legislature, considering the present society and new forms of crime.
Whoever makes sexual relations with a woman by making a fake promise of marriage will be liable for imprisonment for 10 years under Clause 69 of BNS.
Under Section 63, if a husband enters into a consensual sexual relationship with his wife, being less than 18 years of age, it will also amount to rape. Earlier, under IPC, this age was 15 years. However, it fails to take into account women aged 18 or above.
Shortcomings of IPC
IPC covers penalties for offences of sexual harassment, rape, dowry death, voyeurism, stalking, etc., committed against women. These penalties may not be sufficient to deliver complete justice to the victims of sexual offences. Moreover, these penalties are made with the intention of punishing males for the crime. The punishments given in the IPC do not hold females to be guilty of these offences.
The major problem faced by modern society these days is sexual favours taken with a fake promise of marriage. Another type of problem that was not recognised by the legislature in 1860 was that wives were considered to be the property of their husbands and their virginity as a marital gift to the husband. Consent of wives was not important for any matter, not even when it came to their physical body. Hence, no provision was added to prevent wives from marital rape, and in the present scenario, this protection needs to be extended to husbands also.
How does BNS overcome the shortcomings of IPC?
BNS has widened the scope of justice by bringing in neutrality among the genders. The makers of BNS have elaborated certain provisions in such a manner that both males and females can be made guilty.
Enhanced and stringent punishments for sexual offences have been added to ensure protection for females and children against sexual offences. Also, a new offence is recognised under BNS wherein protection is extended to children if any child is hired to commit any offence.
Section 354B of IPC, 1860, assumes a man to be the perpetrator who exerts any criminal force upon a woman intending to disrobe her. However, BNS replaces the assumption of the perpetrator necessarily being a man to any person. Now, if any person, male or female, uses criminal force upon a woman to disrobe her, they will be liable for an offence. However, the victim is still only a woman.
Similarly, Section 77 of BNS was also made gender-neutral, wherein any person who takes or records any photo of a woman engaging in a private act will be held liable for voyeurism. However, under IPC, the act of voyeurism was only punishable if done by a man. Though BNS lacks neutrality when seen from the angle of the victim, as only a woman can be a victim of such an offence and no other gender.
Also, a reform was made in Section 336B of IPC. Earlier, the importation of a girl under the age of 21 was recognised as a crime. But under Section 141 of BNS, such an offence can be committed against both girls and boys.
In precise terms, under BNS, the perpetrator can now be both a man or a woman, but the victim is limited to a woman only.
Shortcomings of BNS
Though BNS has made more stringent liabilities for the accused of any offences, particularly committed against women and children, certain offences out of 358 sections are protecting males or boys. Even under the 2023 law, men or boys are considered to be perpetrators always, rather than victims. Only the offence given under Section 354 of IPC, which was “any man who uses assault or criminal force,” is replaced by “whoever assaults or criminal force” under Section 75 of BNS, and the provision of voyeurism has only made the accused to be of any gender, and not the victim. Apart from this, none of the provisions are delivering true justice to men as well as transgender individuals.
Need for BNS
According to NCW research in the year 2022, 3000 cases of sexual harassment were reported. 1.4% of males are victims of sexual harassment.
In 2017, entrepreneur Vijay Nair had sexually explicit content posted on his Twitter account by a cyberstalker. When the investigation was completed, it was discovered that a woman was the mastermind perpetrator of such harassment.
In 2016, RK Pachauri, the eminent researcher, complained about the sexual harassment done to him.
IAS officer Rupan Bajaj also reported a case of inappropriate touching by KPS Gill. Sadly, he did not serve any time in prison, though he was held guilty by the Supreme Court.
Conclusion
Though BNS 2023 has made various developments in the criminal justice system and extended protection to a larger group of people, some improvisations must be considered by the legislature, giving it a more gender-neutral effect.
