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Is The New Law Under Section 69 Of The Bhartiya Nyaya Sanhita (BNS) Gender Biased And Does It Violate Articles 14 And 15 Of The Constitution Of India?

After India gained independence, we, the citizens, continued to rely on colonial laws like the Indian Penal Code of 1860, Indian Evidence Act of 1872, and Criminal Procedural Code of 1973. For almost 76 years, our legislature did not make significant changes to these criminal laws. These laws, like Indian Penal Code, in force for the last 164 years, were suddenly revised when our Legislature introduced three new criminal Bills in 2023, to be enforced as the Law from July 1, 2024.

This reform repealed the old criminal laws and rebranded them with Indian names, such as Bhartiya Nyaya Sanhita, Bhartitya Nagrik Suraksha Sanhita, Bhartiya Sakshya Adhiniyam which replaced the Indian Penal Code, Criminal Procedural Code, and Indian Evidence Act, incorporating some new sections. Bhartiya Nyaya Sanhita, which replaces the Indian Penal Code of 1860, has introduced a new section under sexual offences against women - Section 69.

Section 69 of Bhartiya Nyaya Sanhita (BNS): Sexual Intercourse by Employing Deceitful Means, etc.

Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the promise, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to a fine.

Explanation: 'Deceitful means' shall include the false promise of employment or promotion, inducement, or marriage after suppressing identity.

Is this Law Gender Biased and Does it Need to be amended?
The Law's Assumption about Women's Capability:
The law suggests that in today's society, where women are advanced, independent, and achieving new heights in all areas of work, they are still not capable of making their own decisions in sexual matters related to their body and dignity. It implies that women can be induced into sex merely by a promise of marriage, a job, or promotions. It fails to acknowledge that women can also hold power or positions where they might induce or make false promises to men in consensual sexual relationships.

Ambiguity in the Law:
The law lacks clarity about the duration of a relationship that qualifies under this section, for which a woman can charge a man for not fulfilling the promise of marriage, promotion, job, or inducement. Without such descriptions, any man in a relationship with a woman, whether long-term, short-term, or in a live-in relationship, can fall under this section for false promises of marriage.

This Law can damage the social status and reputation of men:
As the punishment under this section is 10 years with a fine, and it is a cognizable and non-bailable offence, it is severe in nature. Merely on the complaint of a woman under sexual offences, swift action can be taken by the police, leading to the immediate arrest of a man and his remand for further investigation.

Thus, just a statement from a woman would be sufficient to prosecute a man, regardless of whether or not he made any false promises of marriage, a job, or employment. Even if a man has sufficient proof that he did not make any false promises, false allegations by a woman in revenge can ruin a man's life, social status, and dignity, with no provision inserted as a safeguard against the misuse of the law.

Movies are a mirror of society, and a film like Aitraaz (released in 2004) depicts a man being sexually harassed by his former female lover and current boss, fighting to prove his innocence and restore his dignity. This demonstrates that the law is regressive and does not align with today's society, disregarding the concept of will and consent as essential elements.

Unconstitutional Law: Violating Articles 14 and 15 of the Constitution of India:
The Constitution of India is the supreme law, adopted by its People with a declaration in its Preamble. The Parliament cannot override the Constitution. According to Article 13 of the Constitution of India, the State shall not make any law that takes away or abridges the rights conferred by Part III (Fundamental Rights - Articles 12 to 35) of the Constitution. Any provision inconsistent with the Constitution is considered void.

Section 69 of the Bhartiya Nyaya Sanhita is unconstitutional and violates Article 14, which states, 'The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,' and Article 15, which states, 'The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.' The right to equality is a Fundamental Right enshrined in the Constitution of India.

This law presumes that only a man can make false promises to marry, offer a job, or promote by deceitful means to have sex with a woman, and a woman cannot do the same. It also presumes that in today's society, a woman is so weak that she cannot hold a position of power where she can induce a man by making false promises of marriage, a job, or promotion. Additionally, it assumes that in a consensual sexual relationship based on a promise of marriage, even if a man changes his mind later on due to any genuine reason or misalignment with the woman, that is equivalent to deceit whereas if a woman changes her mind at any point of time that is not equivalently contextualized in the act. Does the law assume that only a man will default and change his mind, whereas a woman cannot change her mind and deceive a man?

Misuse of Law by Women:
Misuse of law by women is a serious issue that needs attention in a developing society. The law under Section 69 of the BNS is another misguided attempt to grant women legal supremacy over men and create a society that deprives men of their fundamental rights. Section 498A of the Indian Penal Code of 1860 was enacted to protect women from marital cruelty, but innocent families have been victimized.

According to the NCRB (National Crime Records Bureau) report 2022[1], the number of registered cases of crimes against women has increased, the majority of cases involved 'cruelty of the husband or his relatives.' As per the NCRB detailed report in 2022, there is a substantial exacerbation/ hike of crimes reported against women.

A total of 111549 cases were registered in 2020, 136234 cases in 2021, and 140019 cases in 2022. In the same NCRB report (table 3A.6 - Police Disposal of crime against women in State and UT) 2022, cases ended as final report false is 36715 and cases ended as mistake of facts or of law or civil dispute is 41086. Court Disposal of crime against women under the head of cruelty against women by husband and relatives, reported in table 3A.7 (NCRB -2022) shows that the conviction rate is 17.7%. The total number of males charge sheeted is 227778 out of which total number of male convicted is 12757.

As per table 3A.9 of NCRB report 2022, male discharged 4163 and acquitted 62309. This data shows that a large number of males were falsely implicated by women. Women sometimes file cases only to extract money from their husbands or harass their in-laws. The misuse of this law has been so widespread that the apex Court of the Country has noted that while Section 498A was intended to be used as a shield, it was being misused as an 'assassins' weapon'. The court observed that by misuse of the provision, a new 'legal terrorism'[2] could be unleashed.

Domestic violence laws are also frequently misused by women. In today's society, these laws should not be gender-biased. Women can also harass their husbands and, when unable to adjust with their husbands or in-laws due to pre-marital or extra-marital affairs or any other reasons, seek divorce and money from their husbands. In many cases women misuse all the laws enacted to protect women as tools to achieve their personal and conceited goals legally. Women use this law as a sword than a shield.

The law needs to protect genuine victims irrespective of gender. When people do not commit any crime but still live in fear of punishment under any law, it is not a law anymore; it is state-sponsored terrorism.

Lack of Checks and Balances:
During the winter session of Parliament in 2023, when many MPs were suspended and disqualified from both houses - Lok Sabha and Rajya Sabha - three new criminal bills were passed: Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha (Second) Sanhita, and Bharatiya Sakshya (Second) Sanhita. These bills were meant to replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act, respectively, and received President Droupadi Murmu's assent on December 25, 2023. There is no doubt about the legislators' intent to replace the colonial system's hurtful laws, which were created by the British to rule over Indian citizens.

This act of the Legislature will result in a massive change in the country's legal system. However, due to the absence of MPs from Lok Sabha and Rajya Sabha, critical questioning by the opposition in public debate was not held, leaving many important questions unanswered. There is a possibility that these three new criminal laws could negatively impact the constitutional rights and civil liberties of Indian citizens.

The introduction of Section 69 under the Bhartiya Nyaya Sanhita (BNS) brings to light significant concerns about gender bias and constitutional violations. While the intention behind the law may have been to protect women from deceitful practices, it inadvertently undermines the principles of equality and fairness enshrined in the Indian Constitution. The law has missed the present day reality and presumes that women are inherently vulnerable and incapable of making informed decisions about their own bodies, disregarding the advancements women have made in society.

Moreover, the ambiguity in the law regarding the duration of relationships and the potential for misuse by women seeking revenge or financial gain further exacerbates the issue. The severe penalties and the cognizable, non-bailable nature of the offense places men at a disproportionate risk of false allegations, leading to irreversible damage to their social status and dignity.

Section 69 not only perpetuates gender stereotypes but also violates Articles 14 and 15 of the Constitution, which guarantee equality before the law and prohibit discrimination on the grounds of sex. By assuming that only men can deceive women into sexual relationships and not vice versa, the law fails to recognize the present day possibility of women holding positions of power and making false promises to men.

Additionally, the history of misuse of laws like Section 498A of the Indian Penal Code and domestic violence provisions highlights the need for a balanced approach that protects genuine victims irrespective of gender. The law must ensure that no one, regardless of gender, lives in fear of false allegations and unjust punishment. Gender should not be a valid ground for discrimination in any matter. This law is gender-biased, discriminatory, and prejudiced, and it needs to be amended.

The lack of comprehensive debate and scrutiny in Parliament during the passing of the new criminal bills further underscores the need for a thorough review and possible amendments to prevent potential infringement on the constitutional rights and civil liberties of Indian citizens, especially men in this case. It is imperative that the legislature considers these concerns and strives to create laws that uphold the principles of justice, equality, and fairness for all.

  1. National Crime Records Bureau (NCRB) Report, 2022.
  2. Sushil Kumar Sharma Vs. Union of India, Writ petition (civil) 141 of 2005

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