The Bharatiya Nyaya Sanhita, 2023

• 25 Oct 2023

For Prelims: Bharatiya Nyaya Sanhita, 2023, IPC (Indian Penal Code), Code of Criminal Procedure (CrPC), Indian Evidence Act, Supreme Court, Adultery, National Judicial Data Grid.

For Mains: The Bharatiya Nyaya Sanhita, 2023, Amendments, Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Source: HT

Why in News?

Recently, a Parliamentary Committee has reviewed the Bharatiya Nyaya Sanhita (BNS) 2023 Bill, proposing significant changes to India's Criminal Justice System, recommendations including a gender-neutral provision criminalizing adultery.

• The BNS Bill, introduced by the Ministry of Home Affairs, seeks to replace the colonial-era IPC (Indian Penal Code).

What are the Key Highlights of the Proposed Changes in BNS?

• Adultery and Gender-Neutral Provision:
  • The parliamentary committee has recommended including a gender-neutral provision that criminalizes Adultery.
    • This move comes after the Supreme Court (SC) declared Section 497 of the Indian Penal Code (IPC), which criminalized adultery, as unconstitutional in 2018.
  • The panel seeks to protect the institution of marriage but in a gender-neutral way.
• Non-Consensual Sex and Bestiality:
  • The committee is considering a clause to criminalize non-consensual sex between men, women, or transpersons, as well as acts of bestiality.
  • This indicates an effort to address various forms of sexual offenses comprehensively.
• Definition of Terms:
  • The committee has suggested better definitions for terms like "community service" and "life imprisonment" in the bill.
• Positive Changes:
  • The new draft code has included the removal of Section 124A (Sedition) and provisions for prosecuting offenses committed in foreign countries.

What are the Arguments for Legalizing and Criminalizing Adultery?

• Legalizing Adultery:
  • Individual Autonomy and Privacy: The Supreme Court, in Joseph Shine vs. The Union of India, 2018 judgment recognized the importance of individual autonomy and the right to privacy.
  • Legalizing adultery acknowledges the right of adults to make decisions about their personal relationships without state interference.
    • The court said that the 158-year-old law was unconstitutional and is violative of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
  • Doctrine of Curvature: Section 497 of the IPC (Indian Penal Code) is based on the Doctrine of Coverture.
    • This doctrine, not recognised by the Constitution, holds that a woman loses her identity and legal right with marriage, is violative of her fundamental rights.
  • Human Liberty: According to the Supreme Court (SC), Marriage does not mean ceding autonomy of one to the other.
    • Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.
    • The SC observes that "Society imposes impossible virtues on a woman, raises her to a pedestal. Confines her to spaces. Objectifies her and says she should be pure. But society has no qualms to commit rape, honour killings, sex-determination and infanticide".
  • Deterrence Effect: Legalization could eliminate the chilling effect of the law on individuals who may be reluctant to leave abusive or unhappy marriages due to the fear of legal consequences.
    • It might encourage open communication and resolution of marital issues.
  • Reducing Judicial Burden: Adultery cases used to burden the legal system. Legalizing it can free up the courts to address more pressing issues and cases.
• Criminalizing Adultery:
  • Preservation of Marital Sanctity: Adultery can harm the institution of marriage, leading to broken families and emotional trauma for the spouse and children. Criminalizing it can be seen as a means to protect the sanctity of marriage.
  • Gender Protection: It is argued that criminalizing adultery is a means to protect women from unfaithful spouses who might otherwise abandon them, leaving them economically vulnerable.
  • Moral and Societal Values: It is argued that the adultery law upholds traditional moral and societal values, which are still important to many in Indian society.
    • Criminalizing adultery could be viewed as a way to protect and preserve the family structure, which is considered a fundamental building block of society.

Way Forward

• Creating awareness about the implications of adultery on families and relationships can help individuals make informed decisions about their personal lives.
• Encouraging couples to seek marriage counseling and mediation in cases of marital discord can be a proactive approach to resolving issues before they lead to adultery. Promoting the availability and accessibility of such services can be beneficial.
• There is a need to promote alternative dispute resolution mechanisms, such as arbitration and mediation, to help couples resolve issues related to infidelity or marital discord outside of the court system.