Introduction
With the repeal of the colonial era-Indian penal code, 1860 (IPC) and the introduction of Bharatiya Nyaya Sanhita, 2023 (BNS), the offence of rape is now codified under Section 63 of the new code.
Definition of Rape under Section 63 of the BNS, 2023
Rape- A man is said to commit "rape" if he-
- Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a women 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, urethra or anus of a women or makes her to do so with him or any other person; or
- Manipulates any part of the body of a women so as to cause penetration into the vagina, urethra, anus or any part of the body of such women or makes her to do so with him or any other person; or
- Applies his mouth to the vagina, anus, urethra of a women or makes her to do so with him or any other person.
- These acts amount of rape when committed under one or more of the following circumstances:
- Against her will;
- Without her consent;
- 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;
- With her consent; when the man knows that he is not her husband and that her consent is given because she believe that he is;
- With her consent when, by reason of unsoundness of mind or intoxication or the administration of a stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;
- With or without her consent when she is under 18 years of age
- When she is unable to communicate consent
Consent under Section 63 of BNS, 2023
Consent is a fundamental element in determining the offence of rape. The law defines consent in Explanation 2 of the section 63 as:
" An unequivocal voluntary agreement where the women, by words, gestures or any form of communication, expresses her willingness to participate in the specific sexual act. "
This definition highlights three key elements:
1.Voluntariness - Consent must be given freely, without coercion, threat, or deception.
2.Clarity - It must be clear and affirmative; silence or absence of resistance is not consent.
3.Communication - Consent can be expressed verbally or non- verbally.
Exceptions to Rape: Where penetration is not considered 'Rape'
- Medical Procedures- Penetration during lawful medical examinations (Example - gynecological exams), as there is no sexual intent.
- Marital Exception- Sexual intercourse or acts by a man with his own wife, the wife not being under 18 years of age.
Punishment for Rape: Section 64- BNS, 2023
Sec. 64 of BNS, 2023 outlines different levels of punishment depending on the nature of the crime and specific circumstances:
1. General Punishment (Section 64(1))
Rigorous imprisonment 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.
2. Aggravated Rape (Section 64(2))
The aggravating circumstances include, but are not limited to, situations where the offender is:
- A police officer committing rape within their jurisdiction, in a police station, or on a woman in custody.
- A public servant committing rape on a woman in their custody.
- A member of the armed forces committing rape in an area where they are deployed.
- On the management or staff of a jail, remand home, or any place of legal custody, or a women's or children's institution, committing rape on a woman there.
- On the management or staff of a hospital, committing rape on a woman in that hospital.
- A relative, guardian, or teacher of, or a person in a position of trust or authority towards the woman, committing rape on such woman.
- Commits rape during communal or sectarian violence.
- Commits rape on a woman knowing her to be pregnant.
- Commits rape on a woman incapable of giving consent.
- Being in a position of control or dominance over a woman, commits rape on such woman.
- Commits rape on a woman suffering from mental illness or physical disability.
- Commits rape and in the course of such commission causes grievous bodily harm, maims, disfigures, or endangers the life of the woman.
- Commits rape repeatedly on the same woman
Punishment- Rigorous imprisonment for a term which will not be less than 10 years, but may extent to imprisonment for life, and shall also be liable to fine.
Landmark cases of Rape in India
1. Tukaram v. State of Maharashtra (Mathura Rape Case), 1979
Key Issue: Consent under coercion.
Outcome: Supreme Court acquitted the accused, stating there was no proof of resistance.
Impact: Massive public outcry led to the Criminal Law (Amendment) Act, 1983, expanding the definition of custodial rape and placing the burden of proof on the accused in such cases.
2.Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983
Key Issue: Testimony of the rape survivor.
Outcome: The court held that the sole testimony of the victim is sufficient for conviction if found trustworthy.
3. State of Punjab v. Gurmit Singh, 1996
Key Issue: Treatment of victims in court.
Outcome: Emphasized the need for sensitive handling of rape cases and minimizing cross-examination trauma.
4.Delhi Gang Rape Case (Nirbhaya Case), 2012
Key Issue: Brutality and juvenile justice.
Outcome: Triggered national outrage.
Impact: Led to the Justice Verma Committee Report and the Criminal Law (Amendment) Act, 2013, which:
-Broadened the definition of rape.
-Introduced death penalty for extreme cases.
-Established fast-track courts.
5. Lillu @ Rajesh & Anr v. State of Haryana (2013):
Key Issue: Use of the "two-finger test" (per vaginal examination) on rape survivors.
Impact: The Supreme Court definitively banned the "two-finger test," stating it has no scientific basis, violates the victim's privacy and dignity, and should not be used to determine consent.
5.Independent Thought v. Union of India, 2017
Key Issue: Marital rape exception for minors.
Outcome: Supreme Court held that sex with a minor wife (under 18) is rape, even if married.
Ongoing Judicial challenges & Debates
1.Marital rape exception- The supreme court is hearing a constitutional challenge to the exception in Section 63 of BNS that exempts husbands from rape charges.
- Petitioners argue it violates articles 14,19 and 21 (equality, dignity and personal liberty)
- The supreme court only criminalized sex with minor wives but adult marital rape remains legal.
2. Lack of Gender-Neutral Rape laws- The current legal framework defines rape as an offence committed by a man against the women, excluding male, transgender, and non binary victims.
-There are demands for gender neutral loss that protect all individuals, regardless of gender.
3. Repeal of Section 377 IPC- With BNS omitting Section 377 entirely there is a gap in law for male/ male and same sex non-consensual assault.
- It creates a gap in protecting male and LGBTQ+ victims, activists demand a new legal provision for such cases.
4. Death penalty debate- States like West Bengal proposed death for rape causing death or involving minors.
- the judiciary has expressed concerns about:
• Whether death penalty deters crime;
• The risk of false convictions;
• The impact on reporting
5. Consent and its interpretation- Courts continue to interpret what constitutes "consent" especially in cases involving:
• Consent under false promise of marriage;
• Consent obtained under fear or pressure;
- Supreme court has emphasized that silence or submission is not consent.
Conclusion
The Bharatiya Nyaya Sanhita (BNS), 2023, represents a significant legal overhaul in India's approach to sexual offenses, particularly rape. By replacing the outdated Indian Penal Code, the BNS introduces a more comprehensive definition of rape under Section 63, emphasizing the crucial element of consent and outlining various circumstances that constitute the offense. The structured penalties under Section 64 for general and aggravated forms of rape further demonstrate a move towards more proportionate justice. While this legislative reform is a positive step, building on lessons from landmark cases and addressing issues like the "two-finger test," challenges remain. The ongoing debates surrounding marital rape underscore that legal changes alone are insufficient. Ultimately, the BNS serves as a vital foundation, but achieving full justice and ensuring safety requires not only robust legal enforcement but also a transformative shift in societal attitudes and a dismantling of patriarchal norms.
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