Rape Provisions Under Bharatiya Nyaya Sanhita (BNS)

Compared to Section 376 IPC

Introduction
The Bharatiya Nyaya Sanhita (BNS) is designed to replace
the Indian Penal Code (IPC), incorporating reforms to
better address modern societal issues. Provisions related
to rape, which were previously covered under Section
376 IPC, have been redefined and expanded under
sections 63 to 73 BNS to ensure a more comprehensive
legal framework.
Key Changes in Definition and Scope
1. Broadened Definition: Under the BNS, the
definition of rape has been further expanded to
include digital penetration, exploitation in situations
of authority, and non-consensual acts within marital
relationships in specific circumstances.
2. Consent Clarification: The BNS emphasizes the
importance of clear, unequivocal, and voluntary
consent, reinforcing that the absence of physical
resistance does not imply consent.
Punishments and Sentencing
1. Stricter Penalties: While Section 376 IPC
prescribed punishments ranging from 7 years to life
imprisonment, the BNS introduces harsher penalties,
 including the death penalty for particularly heinous
cases, such as the rape of minors or in cases of
repeated offenses.
2. Aggravated Circumstances: The BNS outlines
specific aggravated circumstances, such as gang
rape, custodial rape, and rape committed during
communal violence, with mandatory minimum
sentences.
Marital Rape Provisions
One of the notable changes is the partial recognition of
marital rape under the BNS. While Section 376 IPC
provided broad immunity to husbands, the BNS allows for
prosecution in cases where the wife is living separately
under a decree of separation.
Procedural Reforms
1. Speedy Trials: The BNS mandates the completion
of rape trials within a stipulated timeframe to ensure
swift justice.
2. Victim Protection: Enhanced measures for victim
protection during investigation and trial, including in-
camera proceedings and stringent confidentiality
protocols.
Comparison with Section 376 IPC

Bharatiya Nyaya
Aspect Section 376 IPC
Sanhita (BNS)
 Includes digital
Definition of Limited to physical
penetration, authority
Rape penetration
abuse

Clear emphasis on
Consent Less detailed
voluntary consent

Broad immunity Recognized under

Marital Rape
for husbands specific conditions

Harsher penalties,
7 years to life
Punishments including the death
imprisonment
penalty

Speedy Not specifically Mandated within a set

Trials mandated timeframe

Victim Enhanced protection

Basic provisions
Protection measures

Conclusion
The Bharatiya Nyaya Sanhita represents a significant step
forward in addressing sexual crimes in India. By
expanding definitions, recognizing marital rape under
certain conditions, and introducing stricter punishments,
the BNS aims to create a more victim-centric legal
system. However, continuous monitoring and societal
awareness are essential to ensure these legal reforms
effectively contribute to justice and gender equality.
Provisions of Rape under the Bhartiya Nyay
Sanhita
Section 63. A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with
him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person,
under the circumstances falling under any of the
following seven descriptions:—
(i) against her will;
(ii) without her consent;
(iii) 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;
(iv) with her consent, when the man knows that he is not
her husband and that her consent is given because she
believes that he is another man to whom she is or
believes herself to be lawfully married;
(v) with her consent when, at the time of giving such
consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent;
(vi) with or without her consent, when she is under
eighteen years of age; (vii) when she is unable to
communicate consent.
Explanation 1.—For the purposes of this section, “vagina”
shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any
form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception 1.––A medical procedure or intervention shall
not constitute rape.
Exception 2.––Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under eighteen
years of age, is not rape.
Section 64. (1) Whoever, except in the cases provided
for in sub-section (2), commits rape, shall be punished
with rigorous imprisonment of either description 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) Whoever,—
(a) being a police officer, commits rape,—
(i) within the limits of the police station to which such
police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer’s custody or in the
custody of a police officer subordinate to such police
officer; or
(b) being a public servant, commits rape on a woman in
such public servant’s custody or in the custody of a public
servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an
area by the Central Government or a State Government
commits rape in such area; or
(d) being on the management or on the staff of a jail,
remand home or other place of custody established by or
under any law for the time being in force or of a women’s
or children’s institution, commits rape on any inmate of
such jail, remand home, place or institution; or
(e) being on the management or on the staff of a
hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in
a position of trust or authority towards the woman,
commits rape on such woman; or
(g) commits rape during communal or sectarian violence;
or
(h) commits rape on a woman knowing her to be
pregnant; or
(i) commits rape, on a woman incapable of giving
consent; or
(j) being in a position of control or dominance over a
woman, commits rape on such woman; or
(k) commits rape on a woman suffering from mental or
physical disability; or
(l) while committing rape causes grievous bodily harm or
maims or disfigures or endangers the life of a woman; or
(m) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person’s natural
life, and shall also be liable to fine.
Explanation.—For the purposes of this sub-section,—
(a) “armed forces” means the naval, army and air forces
and includes any member of the Armed Forces
constituted under any law for the time being in force,
including the paramilitary forces and any auxiliary forces
that are under the control of the Central Government or
the State Government;
(b) “hospital” means the precincts of the hospital and
includes the precincts of any institution for the reception
and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation;
(c) “police officer” shall have the same meaning as
assigned to the expression “police” under the Police Act,
1861;
(d) “women’s or children’s institution” means an
institution, whether called an orphanage or a home for
neglected women or children or a widow’s home or an
institution called by any other name, which is established
and maintained for the reception and care of women or
children.
Section 65. (1) Whoever, commits rape on a woman
under sixteen years of age shall be punished with
rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life, and shall also
be liable to fine:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the
victim:
Provided further that any fine imposed under this sub-
section shall be paid to the victim.
(2) Whoever, commits rape on a woman under twelve
years of age shall be punished with rigorous
imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of
that person’s natural life, and with fine or with death:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the
victim:
Provided further that any fine imposed under this sub-
section shall be paid to the victim.
Section 66. Whoever, commits an offence punishable
under sub-section (1) or sub-section (2) of section 64 and
in the course of such commission inflicts an injury which
causes the death of the woman or causes the woman to
be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life, or with death.
Section 67. Whoever has sexual intercourse with his
own wife, who is living separately, whether under a
decree of separation or otherwise, without her consent,
shall be punished with imprisonment of either description
for a term which shall not be less than two years but
which may extend to seven years, and shall also be liable
to fine.
Explanation.—In this section, “sexual intercourse” shall
mean any of the acts mentioned in clauses (a) to (d) of
section 63.
Section 68. Whoever, being—
(a) in a position of authority or in a fiduciary relationship;
or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or
other place of custody established by or under any law
for the time being in force, or a women’s or children’s
institution; or
(d) on the management of a hospital or being on the staff
of a hospital,
abuses such position or fiduciary relationship to induce or
seduce any woman either in his custody or under his
charge or present in the premises to have sexual
intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished with
rigorous imprisonment of either description for a term
which shall not be less than five years, but which may
extend to ten years, and shall also be liable to fine.
Explanation 1.—In this section, “sexual intercourse” shall
mean any of the acts mentioned in clauses (a) to (d) of
section 63.
Explanation 2.—For the purposes of this section,
Explanation 1 to section 63 shall also be applicable.
Explanation 3.—“Superintendent”, in relation to a jail,
remand home or other place of custody or a women’s or
children’s institution, includes a person holding any other
office in such jail, remand home, place or institution by
virtue of which such person can exercise any authority or
control over its inmates.
Explanation 4.—The expressions “hospital” and “women’s
or children’s institution” shall respectively have the same
meanings as in clauses (b) and (d) of the Explanation to
sub-section (2) of section 64.
Section 69. Whoever, by deceitful means or by making
promise to marry to a woman without any intention of
fulfilling the same, 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 fine.
Explanation.—“deceitful means” shall include inducement
for, or false promise of employment or promotion, or
marrying by suppressing identity.
Section 70. (1) Where a woman is raped by one or more
persons constituting a group or acting in furtherance of a
common intention, each of those persons shall be
deemed to have committed the offence of rape and shall
be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may
extend to imprisonment for life which shall mean
imprisonment for the remainder of that person’s natural
life, and with fine:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the
victim: Provided further that any fine imposed under this
sub-section shall be paid to the victim.
(2) Where a woman under eighteen years of age is raped
by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons
shall be deemed to have committed the offence of rape
and shall be punished with imprisonment for life, which
shall mean imprisonment for the remainder of that
person’s natural life, and with fine, or with death:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the
victim:
Provided further that any fine imposed under this sub-
section shall be paid to the victim.
Section 71. Whoever has been previously convicted of
an offence punishable under section 64 or section 65 or
section 66 or section 70 and is subsequently convicted of
an offence punishable under any of the said sections shall
be punished with imprisonment for life which shall mean
imprisonment for the remainder of that person’s natural
life, or with death.
Section 72. (1) Whoever prints or publishes the name or
any matter which may make known the identity of any
person against whom an offence under section 64 or
section 65 or section 66 or section 67 or section 68 or
section 69 or section 70 or section 71 is alleged or found
to have been committed (hereafter in this section
referred to as the victim) shall be punished with
imprisonment of either description for a term which may
extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) extends to any printing or
publication of the name or any matter which may make
known the identity of the victim if such printing or
publication is—
(a) by or under the order in writing of the officer-in-
charge of the police station or the police officer making
the investigation into such offence acting in good faith for
the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim;
or
(c) where the victim is dead or a child or of unsound
mind, by, or with the authorisation in writing of, the next
of kin of the victim:
Provided that no such authorisation shall be given by the
next of kin to anybody other than the chairman or the
secretary, by whatever name called, of any recognised
welfare institution or organisation.
Explanation.—For the purposes of this sub-section,
“recognised welfare institution or organisation” means a
social welfare institution or organisation recognised in
this behalf by the Central Government or the State
Government.
Section 73. Whoever prints or publishes any matter in
relation to any proceeding before a Court with respect to
an offence referred to in section 72 without the previous
permission of such Court shall be punished with
imprisonment of either description for a term which may
extend to two years and shall also be liable to fine.
Explanation.—The printing or publication of the judgment
of any High Court or the Supreme Court does not amount
to an offence within the meaning of this section.