In the movie "The Shawshank Redemption," Andy Dufresne, a banker wrongfully accused of murdering his wife, endures two decades at Shawshank Prison. While incarcerated, he uses his banking skills to assist the corrupt warden in money laundering. The movie isn't just about Andy's eventual escape but also systemic corruption, misuse of power, and the need for reform.
The Indian criminal justice system, rooted in colonial-era laws, can be likened to the imposing walls of Shawshank. It's not just about the visible bricks and mortar (the dated Indian Penal Code, 1860, the Evidence Act, 1872 and Criminal Procedure Act, 1898) but the structures of power and control that have been perpetuated over the decades.
The Bharatiya Nyaya Sanhita (BNS), Bharatiya Sakshya (BS) Bill, and Bharatiya Nagarik Suraksha Sanhita (BNSS), introduced in Lok Sabha, signify much-needed renovation. However, as Foucault would suggest, this overhaul isn't just about replacing outdated statutes. It's about reassessing the foundations of justice, power structures, and societal relations.
While the colonial legacy is a critical component of this reform, it doesn't stand alone. A modern and effective criminal justice system must be sensitive to gender justice, understanding that crimes against women are not just individual acts but are reflective of deeply entrenched societal power dynamics. The new reforms promise more stringent punishment for crimes against women, ensuring that the system is not just punitive, but also protective. In this column, we discuss five big reforms.
(1) The definitions of rape in IPC Section 375 and BNS Section 63 differ significantly, with BNS being more comprehensive. While IPC emphasizes penetration as the act of rape, BNS broadens the scope to include various other acts, such as insertion of objects or manipulation to cause penetration. BNS also extends the circumstances that negate consent, covers a wider age range (up to 18), and adds specific exceptions to medical procedures. Overall, BNS's definition is more aligned with a modern understanding of consent and sexual violence, making it a more encompassing approach to the subject.
(2) The distinction between the punishments for rape under the BNS and the IPC highlight different approaches and considerations. The BNS appears to have specific categorizations for punishment, factoring in victim's age, circumstances of the crime, relationship to the victim, and additional scenarios such as deceitful means or acting in a group. The punishment under BNS tend to have higher minimum sentences, with provisions for both imprisonment and fines, extending to life imprisonment or even the death penalty in extreme cases.
The IPC outlines a more generalised approach to rape punishment, with a minimum jail term of seven years, extending up to life imprisonment, along with fines. There are provisions for less severe penalties with special reasoning, and specific clauses related to official positions, such as police officers and public servants. Overall, the BNS seems more nuanced and stringent in its approach to rape punishment, reflecting more detailed consideration of different contexts and circumstances, while the IPC provides a broader framework with some flexibility for judicial discretion.
(3) One of the positive aspects of BNS is that it doesn't fixate on a specific value for fines. In India, fines typically remain low, as they are determined by legislation. Consequently, to alter these fines, it's necessary to pass an amendment through parliament. In contrast, BNS provides a more flexible approach by stipulating that fines should be "just and reasonable" to cover the victim's medical costs and rehabilitation. This approach centers on the well-being of the victim, ensuring her financial stability and empowerment.
(4) The provisions of the IPC and the BNS regarding assault and criminal force against women underline society's efforts to protect women from various forms of harassment and assault. Section 354 of the IPC focuses on the "intention to outrage the modesty of a woman" through assault or criminal force, punishable by up to two years' imprisonment. In contrast, the BNS provides a more detailed, comprehensive, and harsher set of punishments for similar offenses. Section 73 echoes IPC's Section 354 but mandates a minimum imprisonment of one year, which can extend to five. Also, the BNS has also clubbed all the given offences under the subheading "Of criminal force and assault against women" sexual harassment (Section 74), intent to disrobe (Section 75), voyeurism (Section 76), and stalking (Section 77), each with its specific definitions and corresponding punishment and penalties. It is evident that the BNS aims for a more nuanced understanding of offenses against women and envisions stricter consequences for offenders. By specifying various forms of harassment and assault, the BNS is more expansive in its protective approach, emphasizing not just the physical, but also the emotional and psychological harm such acts can inflict on women.
(5) In the criminal justice system, the implementation of gender-neutral offenses is paramount for ensuring fairness, equality, and modernity. Traditional gender-based definitions of crimes can lead to biases and inequalities, reinforcing stereotypes that don't align with the diverse and complex realities of human behavior. Gender neutrality in the law acknowledges that an offense can be committed by anyone, regardless of gender, and promotes a more inclusive and just legal framework. In this context, the BNS's move to make various offenses gender-neutral is a commendable step in the right direction. It not only reflects a more evolved and nuanced understanding of criminal behavior but also symbolizes a shift towards a more gender-inclusive and modern criminal justice system. Such progressive changes underscore the commitment to equality and non-discrimination, essential principles for a fair and just society.
The proposed shift from the archaic provisions of the IPC to the more contemporary and nuanced stipulations of the BNS is akin to breaking free from the oppressive walls of Shawshank. By focusing on a detailed and victim-centric approach to gender justice, the BNS not only fortifies legal safeguards but also begins to reshape societal understanding. In doing so, it lays the foundation for a legal system where gender equality is not merely an aspirational goal but an attainable reality, marking an essential stride towards a just, inclusive, and modern society.
Bibek Debroy is the Chairman, Economic Advisory Council to the Prime Minister (EAC-PM) & Aditya Sinha is Additional Private Secretary (Policy & Research), EAC-PM.)
Disclaimer: These are the personal opinions of the authors.