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In ‘Interest of Gender Neutrality’, Parl Panel Recommends Keeping Section 377, Criminalising Adultery

The Parliamentary Standing Committee on Home Affairs, in its report that was adopted last week, has given its recommendations for the Bharatiya Nyaya Sanhita Bill that seeks to replace the Indian Penal Code.
New parliament building. Photo: Twitter/@narendramodi

New Delhi: The Parliamentary Standing Committee on Home Affairs that was tasked to examine the three new criminal Bills has recommended that in the interest of gender neutral laws, the Bharatiya Nyaya Sanhita Bill, which seeks to replace the Indian Penal Code, 1860, should include the criminalisation of adultery and retain Section 377.

Along with the Bharatiya Nyaya Sanhita Bill, the Bharatiya Sakshya Adhiniyam Bill (to replace the Indian Evidence Act, 1872) and the Bharatiya Nagarik Suraksha Sanhita Bill (to replace the Criminal Procedure Code, 1973) were introduced in parliament on August 11.

The Bills were then referred to the 31-member Parliamentary Standing Committee, headed by BJP MP Brij Lal.

The panel adopted its report last week.

The Wire analyses the main recommendations and observations of the committee on the Bharatiya Nyaya Sanhita Bill.

The opposition MPs had written in their dissent notes that the new legislations are “largely a copy-paste” of the existing laws. They had also opposed their Hindi names, flagged the lack of consultation and the diversity of domain expert opinion, and questioned the “haste” in which the legislations are being introduced. Despite these objections, the committee report has hailed the new Bills.

Also Read: ‘Copy Paste’, ‘Hindi Imposition’: What Opposition MPs’ Dissent Notes on the Criminal Bills Say

Retain Section 377

The committee said that while the Supreme Court in 2018 had ruled in the Navtej Singh Johar v. Union of India case that Section 377 of the IPC is in violation of Articles 14, 15, 19, and 21 of the Constitution of India, the law remained applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

It said that no such provision for non-consensual sexual offences against males, females and transgenders and for bestiality has been made in the Bharatiya Nyaya Sanhita (BNS), 2023.

“The committee feels that to align with the objectives stated in the BNS’s 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 the government to include Section 377 of the IPC, in the proposed law,” it said.

Retain adultery as a gender-neutral criminal offence

The committee has also cited the interests of gender neutrality in recommending that Section 497 of the IPC, which was struck down by the Supreme Court in 2018, should be retained in the proposed legislation by “making it gender-neutral”.

Under Section 497, a person who had sexual intercourse with a married woman without the consent or connivance of her husband would be guilty of adultery. This was punishable with imprisonment or fine or both; but the woman was not punishable.

Also Read: Should Adultery Be a Crime at All?

The Supreme Court while striking down the law had said it was archaic, arbitrary, and paternalistic and that it infringed upon a woman’s autonomy, dignity, and privacy, and that it reduced the married woman to being her husband’s property.

“In this regard, 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 should be retained in the Sanhita by making it gender-neutral,” the report said.

Death penalty and Hindi imposition

While opposition MPs in their dissent notes had highlighted the need to abolish the death penalty and wrote against the Hindi names of the three laws, the committee has not recommended either.

The report said that the committee had considered the submissions on doing away with the death penalty, but left the matter to be decided by the Union government.

“The committee, after considering the submissions regarding the death penalty, has understood that the reason for a passionate argument against death penalty is that the judicial system can be fallible and to prevent an innocent person from being wrongly sentenced to death. In this regard, the committee recommends that the matter may be left for the government to consider,” it said.

The report also said that the committee was satisfied with the arguments of the home ministry and that the Hindi names of the Bills are not a violation of Article 348 of the constitution, which says that language to be used in the Supreme Court and in the high courts, as well as for Acts, Bills and other legal documents, shall be in English.

“The committee finds that as the text of the Sanhita is in English, it does not violate the provisions of Article 348 of the Constitution. The Committee is satisfied with the response of the Ministry and holds that the name given to the proposed legislation is not in violation of Article 348 of the Constitution of India,” it said.

Defining community service, life imprisonment

The committee has recommended that while the new law proposes to change the definition of imprisonment for life to mean it as imprisonment for the remainder of a person’s natural life, the courts have interpreted imprisonment for life simpliciter to mean a ‘whole life sentence’.

“The committee recommends that suitable amendments may be made in consultation with the Ministry of Law and Justice to make clause 4(b) more comprehensive,” it said.

The committee also noted that while the introduction of community service is a welcome step and a reformatory approach, the “term and nature of community service” has not been specified and should be duly defined.

Replace mental illness with unsound mind

The committee has also recommended that the term ‘mental illness’ be replaced with ‘unsound mind’ in the Bill.

It said that the term mental illness is too wide in its import in comparison to unsound mind, as it appears to include even mood swings or voluntary intoxication within its ambit.

“The committee is also of the view that such a frivolous claim, if recognised as a valid defence, will spell doom for the prosecution as all defences will be claimed under this provision, thereby defeating the very purpose of this Sanhita,” it said.

Rectify all grammatical and typographical errors

The committee has noted typographical and grammatical errors in the text of the Bill that had also been raised by opposition MPs.

“The committee is of the view that even a single typographical or grammatical error in the Sanhita has the potential to be misinterpreted and diluting the intent of the provision. The committee, therefore, recommends the ministry to rectify such typographical and grammatical errors,” it said.

“Rephrasing” sedition

Despite Union home minister Amit Shah’s claims in parliament that the sedition law has been deleted, opposition MPs had written in their dissent notes about reintroducing the law in a more draconian manner.

The committee has, however, “complimented” the Union government for deleting the term and “rephrasing it.”

“The committee compliments the government in deleting the term ‘sedition’ from criminal law by rephrasing it without compromising the security of the state,” the report said.

“The committee finds it as a very progressive development. It is observed that in the Explanation part of clause, due to a typological error the sentence remains incomplete. The words ‘do not constitute offence under this section’ may be added at the end.”

Committee hails “milestone initiative”

The committee has hailed the government’s “milestone initiative” in bringing these laws.

While opposition MPs had written about the lack of diversity in domain expert opinion, the committee said that “the process of consultation undertaken has been exhaustive and comprehensive”.

“A comprehensive review of the criminal justice system in our country was the need of the hour to bring it on par with the contemporary aspirations of the people. Having taken a citizen-centric approach, these proposed laws serve as a reassurance to the Indian citizens. The committee feels that these Bills are much-awaited and much-needed reforms as well as an imperative for smooth and transparent functioning of our legal system,” it said.

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