Greater Kashmir’s Understanding the Law Initiative Where Shadows Fall, Let Justice Rise

The Bharatiya Nyaya Sanhita, 2023, marks a pivotal reform in India’s criminal justice system, replacing the colonial-era Indian Penal Code. Among its most vital and progressive chapters is the one dealing with sexual offences against women and children, reflecting a contemporary understanding of consent, bodily autonomy, and victim protection.

This article explores the provisions under this new law that specifically address acts of sexual violence, the definitions it refines, the enhanced punishments it prescribes, and the safeguards it provides to uphold the dignity and rights of victims, especially those who are most vulnerable.

What are the circumstances under which the acts, as understood in law, are considered rape?

The acts are considered rape when done:

• Against the woman’s will;
• Without her consent;
• With her consent obtained by putting her or someone she cares about in fear of death or hurt;
• With her consent when the man knows he is not her husband and she believes he is her husband;
• With her consent when, due to unsoundness of mind, intoxication, or being drugged, she is unable to understand the nature and consequences;
• With or without her consent if she is under 18 years of age;
• When she is unable to communicate consent.

What is the legal definition of consent in relation to sexual acts?

Consent means an unequivocal voluntary agreement when a woman, by words, gestures, or other verbal or non-verbal communication, communicates willingness to participate in a specific sexual act.

Is the absence of physical resistance by the woman considered as consent?

No, the absence of physical resistance alone does not imply consent.

What are the exceptions to the definition of rape?

• Medical procedures or interventions are not rape.
• Sexual intercourse by a man with his wife, if the wife is not below 18 years, is not rape.

What did the Supreme Court say about the gravity of the offence of rape?

In Anurag Soni v. State of Chhattisgarh, the Supreme Court held that rape is a heinous crime against society that degrades the victim physically and mentally.

How has consent been judicially interpreted?

In Kaini Rajan v. State of Kerala, the Supreme Court stated that consent must be an act of reason with deliberation, indicating an active will to permit the act.

Is consent relevant in cases involving minors?

No, as held in State of H.P. v. Shree Kant Shekari, consent is immaterial if the victim is under the age of 18.

Can consent under a false promise of marriage be valid?

No. In Pramod Suryabhan Pawar v. State of Maharashtra, it was held that consent based on a false promise of marriage is not valid consent and can amount to rape.

Is sexual intercourse with a minor wife rape?

Yes. In Independent Thought v. Union of India, the Court held that sex with a wife under 18 years is rape, and the earlier legal exception was unconstitutional.

What is the punishment for rape (general provision)?

Rigorous imprisonment of not less than 10 years, which may extend to life imprisonment, and the person is also liable to fine.

What are the enhanced punishments for rape committed by persons in authority?

Persons such as police officers, public servants, military personnel, hospital staff, or those in positions of trust (like guardians or teachers), who commit rape, are punished with rigorous imprisonment not less than 10 years, which may extend to life imprisonment for the remainder of the natural life, and also liable to fine.

What is the punishment for rape of a girl under 16 years of age?

Rigorous imprisonment not less than 20 years, extendable to life imprisonment (remainder of natural life), and also liable to fine paid to the victim.

What is the punishment for rape of a girl under 12 years of age?

Rigorous imprisonment of not less than 20 years, extendable to life imprisonment or death, and fine paid to the victim.

What if rape causes the death of the victim or leaves her in a vegetative state?

The offender shall be punished with rigorous imprisonment not less than 20 years, extendable to life imprisonment (natural life) or death.

Is sexual intercourse by a husband with a separated wife an offence?

Yes. If done without her consent, it is punishable with imprisonment of 2 to 7 years and fine.

What is the punishment for a person in authority inducing a woman to have sexual intercourse (not amounting to rape)?

Rigorous imprisonment not less than 5 years, which may extend to 10 years, and fine.

What is sexual intercourse by deceitful means?

If a person uses deceit, such as a false promise of marriage, job, promotion, or suppresses identity, and has sexual intercourse (not amounting to rape), he may be punished with imprisonment up to 10 years and fine.

What is gang rape and its punishment?

If a woman is raped by multiple persons acting with common intention, each is deemed guilty and punished with minimum 20 years imprisonment, extendable to life (natural life), and fine to the victim.

What is the punishment for gang rape of a woman under 18 years?

Life imprisonment (natural life) or death, and fine to the victim.

What is the punishment for repeat offenders of sexual offences?

Repeat offenders shall be punished with life imprisonment (natural life) or death.

Is it an offence to disclose the identity of a rape victim?

Yes. Publishing or printing the name or details that may reveal the identity of the victim is punishable with up to 2 years' imprisonment and fine.

Are there exceptions where identity may be disclosed?

Yes, in the following cases:

• Under written order of the police officer in charge, for purposes of investigation;
• With the written authorisation of the victim;
• If the victim is dead, a child, or of unsound mind, with written authorisation of the next of kin, but only to a recognised welfare organisation.

Is it an offence to publish court proceedings related to rape without permission?

Yes. It is punishable with up to 2 years’ imprisonment and fine. However, judgments of High Courts or the Supreme Court can be published and do not amount to an offence.

Therefore, the Bharatiya Nyaya Sanhita, 2023, signals a decisive shift towards a more victim-centric and stringent legal framework for addressing sexual crimes. By broadening definitions, elevating punishments, and reinforcing protections, particularly for minors and victims of authority-based abuse, it seeks to deter offenders while empowering survivors with greater legal clarity and support. As India moves forward with this reformed law, effective implementation and sensitisation across all levels of the justice system will be essential to ensure that the law serves not just as a deterrent, but as a tool of justice and restoration.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.