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Make adultery, non-consensual gay sex crimes, says House panel

By, New Delhi
Oct 25, 2023 01:01 PM IST

A parliamentary committee reviewing a bill to replace India's penal code is likely to recommend including a gender-neutral provision criminalising adultery

The government should consider including a gender-neutral provision criminalising adultery and a clause that criminalises non-consensual sex between men, women or transpersons as well as acts of bestiality, a parliamentary committee reviewing a landmark bill that seeks to replace the colonial-era Indian Penal Code (IPC) is likely to recommend, people aware of developments said on Tuesday.

The Ministry of Home Affairs will consider the recommendations of the parliamentary standing committee once it tables its report in Parliament(HT FILE PHOTO)
The Ministry of Home Affairs will consider the recommendations of the parliamentary standing committee once it tables its report in Parliament(HT FILE PHOTO)

In its draft report, according to the people cited above, the parliamentary standing committee on home affairs is also likely to suggest that terms such as community service and life imprisonment are better defined. It also might brush aside objections to the name of the bill — the Bharatiya Nyaya Sanhita (BNS) — while endorsing the need for an overhaul of India’s criminal justice system.

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Once finalised, the report will be sent to the Union home ministry. It is not binding but has some persuasive value, especially because the government had voluntarily said the bill will be sent to the parliamentary panel — headed by Bharatiya Janata Party (BJP) Rajya Sabha member Brij Lal — for review.

The panel’s deliberations took up Section 497 of IPC, which criminalised adultery, and noted that the Supreme Court scrapped it in 2018, finding it unconstitutional and archaic. In the view of the panel, according to the people quoted above, the law — which punished a man who had consensual sexual intercourse with the wife of another man without the husband’s consent with up to five years in jail, a fine or both — only penalised the married man.

Hence, the draft report of the panel is likely to suggest that the provision be made gender neutral, said the people cited above. The committee was of the view that the institution of marriage is sacred in India and hence, it needed to be safeguarded, said the people cited above.

Section 377 — the British-era provision that criminalised homosexuality before the top court read it down in a landmark verdict in 2018 — also surfaced in the panel’s discussions. The committee noted that even after the apex court’s verdict, provisions of the law remained applicable in cases of non-consensual sex, but after BNS dropped any reference to section 377, there was no provision for non-consensual sexual offence against “men, women, transpersons and for acts of bestiality”.

Hence, the panel is likely to tell the government to include section 377 of IPC, said the people cited above.

The BNS was part of three bills — the Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Sakshya Bill, 2023 being the other two — introduced by Union home minister Amit Shah on the final day of the monsoon session in the Lok Sabha. Together, they seek to replace British-era IPC, Code of Criminal Procedure (CrPC), and the Indian Evidence Act respectively in an overhaul that the government says will transform India’s criminal justice system.

The draft codes were prepared after a panel of experts, also known as the Committee for Reforms in Criminal Laws, appointed by the home ministry, worked on the changes in the criminal laws starting 2020 and gave detailed recommendations to the government. The home ministry also consulted states and other experts regarding the changes.

IPC, which deals with a majority of criminal offences, was enacted by the British in 1860. It was adopted by the Indian government after Independence and was amended around 77 times.

On the death penalty — under BNS, 15 crimes can attract capital punishment, up from 11 under IPC — the panel’s recommendations would likely leave the issue for the government to decide, said the people cited above.

It is also likely to appreciate a key change introduced by BNS in favour of community service as one of the punishments for petty crimes. To be sure, courts have often exercised their discretion to order community service, but this was not laid down in IPC.

But, said the people aware of deliberations, the panel likely to suggest that the term and nature of community service should be defined.

The panel also took up objections to the name of the proposed code — after BNS was tabled, some politicians, especially from the south, had objected to the Hindi nomenclature — said the people cited above. In its draft report, the committee is likely to suggest that as the text of the bill is in English, it did not violate Article 348 of the Constitution.

The committee is also likely to flag several positives about the new draft code, including the removal of Section 124A of IPC, or sedition, said the people cited above. When BNS was tabled, experts had pointed out that a new section 150 was brought in to deal “effectively” with what it identifies as “secession”, “armed rebellion” “subversive activities”, “endangering sovereignty or unity and integrity of India”. These crimes will be punishable with imprisonment for life or with imprisonment to seven years with a fine.

Clause 48, which allows for the prosecution of a person in foreign country for abetting an offence in India, will also likely find favour with the panel, said people aware of developments. On another new provision — clause 104 that deals with hit-and-run cases — the committee will likely take the view that more deliberation is required because it may violate Article 20(3) of the Constitution which says no person accused of an offence shall be compelled to be a witness against himself.

The panel will next meet on October 27, when the report is likely to be submitted. It started deliberating on the three laws from mid-August.

On the provision in BNS that proposes to change the definition of life imprisonment to “imprisonment for the remainder of a person’s natural life”, the committee asked the government to make suitable amendments in consultation with the law ministry to make this clause “more comprehensive”.

Experts criticised the panel’s recommendations.

“How can reintroduction of adultery as a criminal offence be considered as any form of ‘reform’? It demonstrates a regressive and archaic approach to criminal law,” said Anup Surendranath, professor of law at the National Law University who teaches criminal law and the law of evidence.

“The remedy and consequences for adultery lies in family law and it should remain there. Criminalising adultery would be an unjustified and disproportionate interference by the state, and this is even before we get into the minefield that will await us if we try to define the exact contours of the offence,” he said.

“It is alarming that we are contemplating going back to the framework of ‘unnatural offences’ even if it is to address sexual offences committed by men against other men or against children. The ‘unnatural offences’ framework is a colonial relic and we cannot go back to it,” added Surendranath.

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  • ABOUT THE AUTHOR
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    Neeraj Chauhan, senior associate editor with the National Political Bureau of Hindustan Times, writes on security, terrorism, corruption, laundering, black money, narcotics, and related policy matters while covering MHA, ED, CBI, NIA, IB, CVC, NHRC, CAG, Income Tax department, etc.

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