New Delhi: The parliamentary standing committee on home affairs has recommended reinstatement of a gender-neutral version of Section 497 relating to adultery, and Section 377 relating to non-consensual sexual acts, in the Bharatiya Nyaya Sanhita Bill, introduced in the Lok Sabha this August to replace the Indian Penal Code (IPC).
The Supreme Court had in 2018 decriminalised adultery, striking down Section 497 of the IPC which made it an offence for a man to have sexual intercourse with a married woman without the husband’s consent. Among other things, the court had observed that the provision treated the woman “as the property of man and totally subservient to the will of the master”.
The parliamentary panel has, however, said in its report: “The committee is of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity. For the sake of protecting the institution of marriage, this section (497) should be retained in the Sanhita by making it gender-neutral.”
The report, seen by ThePrint, was presented to the Rajya Sabha Chairman, and forwarded to the Lok Sabha Speaker on 10 November.
The committee has also recommended re-introduction of Section 377 to the extent that it applies to non-consensual sexual acts, and bestiality.
The new Bill has also sought to introduce a new provision dealing with crimes linked to mob lynching and hate. It has carved out a separate offence for a group of five or more persons acting in concert and committing murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground. In such a case, it provides for punishment of death or life imprisonment or a minimum of seven-year jail term, with fine.
The move has come five years after the Supreme Court highlighted the need for a law to address cases of lynching and vigilantism in a 2018 judgment.
The parliamentary panel has, however, recommended that the seven-year jail term from the clause may be deleted, and that the opinion of the Attorney General and the Solicitor General may be sought in this regard.
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‘Retain portions of Section 377’
According to the panel’s report, members of the committee as well as several stakeholders expressed objection to Section 377 being completely deleted from Bharatiya Nyaya Sanhita Bill, 2023.
The Supreme Court had, in the Navtej Singh Johar judgement of 2018, struck down Section 377 to the extent that it criminalised same-sex relations between consenting adults.
“The committee understands that unnatural sex, which was an offence under Section 377 IPC, has been read down by the Supreme Court, but non-consensual sexual acts of unnatural order are still prosecuted under this section,” the panel’s report said.
It asserted that several members were of the view that the remaining part of Section 377, which is still valid, should be retained in the new Bill, appropriately.
The committee observed that provisions of Section 377 “remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality”. However, it acknowledged that in the new Bill, no provision for non-consensual sexual offence against male, female, transgender and for bestiality had been made.
It, therefore, recommended: “The committee feels that to align with the objectives stated in the (Bharatiya Nyaya Sanhita) Statement of Objects and Reasons, which inter-alia highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain Section 377 of the IPC. The committee therefore recommends to the government to include Section 377 in the proposed law.”
The report also pointed out that members were concerned about the Bill being given a Hindi name, and alleged that the Hindi name may be in violation of Article 348 of the Constitution, which requires all proceedings in the Supreme Court and high courts as well as all Bills and Acts to be in English language.
However, the panel opined that since the text of the Bill was in English language, it did not violate the provisions of Article 348.
Definition of ‘terrorist act’
The new Bill, for the first time, adds a provision defining a ‘terrorist act’, which so far was defined by Section 15 of the Unlawful Activities (Prevention) Act (UAPA), 1967. While the new provision borrows heavily from the definition provided under the UAPA, it also contains new elements.
For instance, while it classifies any act that intends to threaten “the unity, integrity and security of India” as a terrorist act, it also includes acts intending to, among other things, “intimidate” any segment of the public or “disturbing public order”.
The committee has now recommended that the term “intimidation” should be explained to settle the ambiguity in categorising an act as a ‘terrorist act’.
It has also suggested that the element of “mens rea” should be added in Section 111(6) of the new Bill, which provides punishment for holding any property derived from commission of terrorist acts or from proceeds of terrorism, or acquired through the terrorist fund.
“Mens rea” literally translates to “guilty mind” and refers to a criminal intent or wrongful intention to commit a crime. The provision also criminalises possessing, providing, collecting or using property or funds or financial services to carry out or facilitate commission of any terrorist act.
While the provision talks of a terrorist act being committed “in India or any foreign country”, the committee has recommended that the expression “foreign country” should be replaced with “anywhere outside India” to widen the scope of the clause to cover all offenders located outside India.
The committee has also recommended that a provision should be added saying that before registering a criminal case or FIR under this clause, approval has to be provided by a senior police officer to decide whether the FIR should be registered under the Unlawful Activities (Prevention) Act or under the new law.
What is life imprisonment?
Section 4 of the new Bill talks about punishments to which offenders are liable under the provisions of the law, and includes “imprisonment for life, that is to say, imprisonment for the remainder of a person’s natural life”.
Currently, Section 53 of the IPC just provides for “imprisonment for life”, and certain offences of a sexual nature provide for imprisonment for the remainder of a person’s natural life. However, the Code of Criminal Procedure (CrPC) allows the appropriate government to suspend, remit, or commute a sentence imposed by any court for any offence. Additionally, Section 433A of the CrPC states that release of a person sentenced to imprisonment for life is not permitted till they have served at least 14 years of their actual sentence.
Courts have interpreted imprisonment for life to mean imprisonment for the remaining period of the person’s natural life or “whole life sentence”. Additionally, courts have held that the high courts and the Supreme Court can impose the punishment of a whole life sentence and place it outside the scope of executive remission based on the circumstances of a particular case. Therefore, the true effect of a “life imprisonment” may vary.
The parliamentary panel noted in its report that the Bill proposes to change the definition of imprisonment for life, defining it as imprisonment for the remainder of a person’s natural life.
It added that experts told the committee that the meaning and consequences of the suggested alteration in the definition “remains ambiguous”.
This is because while life imprisonment itself has been defined to include “imprisonment for the remainder of a person’s natural life”, some provisions of the new Bill provide for “imprisonment for life” as a possible sentence while some others specifically prescribe “imprisonment for life, which shall mean the remainder of that person’s natural life”.
The panel has recommended that suitable amendments may be made, in consultation with the Ministry of Law & Justice, to make the definition “more comprehensive”.
(Edited by Nida Fatima Siddiqui)
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