From July 1, the three new laws – Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Act – have replaced the Indian Penal Code, Code of Criminal Procedure, and Evidence Act, respectively.
This decision has sparked a range of reactions across the country, with citizens filing petitions and experts calling for further parliamentary deliberation. Despite these concerns, the government remains confident about implementing the new laws, with the Ministry of Home Affairs instructing states to identify and address potential issues during the rollout. As we transition to this new criminal justice system, it is crucial to examine how India’s emerging legal framework impacts women’s rights and agency.
At the state level, Uttarakhand became the second state in India to implement a Uniform Civil Code after Goa, and Assam is following suit by repealing the Assam Muslim Marriages and Divorce Registration Act of 1935. Uttarakhand’s code includes a provision for registering live-in relationships with a state-appointed registrar.
This is significant, as live-in relationships are already protected under laws like the Protection of Women from Domestic Violence Act, 2005. The registrar will maintain public records and have the authority to inquire into these relationships. Notably, the code requires informing parents if either partner is under 21, despite the marriage age requirement being 18 for girls, which raises questions about the autonomy of young women. While these developments may seem like mere legal conflicts that can be clarified through subsequent judgments, they were passed using the regular legislative processes with the help of our elected representatives.
Politics, as a form of power, manifests in different ways and significantly influences both public and private lives. In India, the regulation of private spaces often serves as a double-edged sword for women. For instance, when the state regulates private issues such as marriage, relationships, abortion, and contraception, it blurs the line between public and private, asserting control over intimate spaces. Similarly, issues like domestic violence and marital rape highlight how state intervention in personal matters can profoundly affect women’s lives. This interplay between public policy and private autonomy often results in one being prioritised over the other, raising important questions about the balance of power and the protection of individual rights.
At the central level, the Bhartiya Nyay Sanhita 2023, which replaced the Indian Penal Code 1860, reaffirms the earlier exception of ‘marital rape’, stating that “sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape.” This is concerning when, according to the NFHS-5 survey, among married women aged 18-49, 83% report experiencing sexual violence by their current husband, and 13% report a former husband as a perpetrator. While the Supreme Court has yet to deliver a judgment on this issue, the government’s latest position on this matter was that criminalising marital rape would ‘harm the institution of marriage.’ For women, this means their bodily autonomy is at risk to preserve the larger societal institution.
Also read: Why the Bharatiya Nyay Sanhita Is a Missed Opportunity for Gender Justice
Although they may have the legal independence to choose their marriage partner (barring the societal hurdles of religion, caste, and class), their protection post-marriage remains conditional on the state’s interpretation of marriage and its societal significance. Further, the same law also removes protection from sexual violence against trans persons, which was mentioned in the earlier versions of the law under Section 377 of the IPC.
Further, the same law also retains its earlier provision on self-managed abortions for women. By legal interpretation, voluntary miscarriage stands for criminal abortion, punishable by law. This means that if a woman causes herself to miscarry for reasons other than her health or in good faith (not defined under law), she will be liable for a fine and a jail term of up to three years. The Medical Termination of Pregnancy (Amendment) Act 2021 stands as an exception to this law, allowing for the abortion of a pregnancy. But even this abortion is conditional and can only be performed on the advice of a doctor for select categories of women dealing with physical, sexual, mental, or humanitarian distress. In special circumstances beyond the gestational limit of 24 weeks, it depends on the approval of the Medical Board only if there is a substantial foetal abnormality. So while access to abortion exists under the legal regime of the country, there is still a long road ahead before it is recognised as a right for a person with the capacity to become pregnant to unconditionally decide whether a pregnancy is to be continued or not.
In all these examples, we see an incongruous image of what constitutes ‘personal’ to women and their agency in making decisions according to the state’s understanding. While they may not have the autonomy to choose a partner or make sexual and reproductive decisions, the state exercises control in societal institutions such as marriage to reinforce perceptions of morality. Thus, privacy in law for women becomes a slippery slope. When linked with individual dignity, bodily integrity, and sexual autonomy, privacy serves as a tool for women to assert their rights. However, when the notion of privacy conflicts with societal structures, it can potentially undermine women’s rights, given the gendered power dynamics within families.
While it may be essential to have common laws on some civil matters and to standardise certain laws for greater ‘integration’ of civil suits, the question remains: how do we strike the balance between regulation and the infringement of agency? This is crucial considering that key decisions affecting women and girls’ lives occur in both the private and public spheres and often entail negotiation and compromise. As the new criminal laws take effect, ongoing discussions and clarifications are necessary to ensure that women’s autonomy is not compromised in the pursuit of societal norms.
Natasha Singh is a public policy professional, and ex-LAMP, who has worked in the fields of gender, health and governance.
This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.
