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High Court Advocate points discrepancy in provision pertaining to punishment for rape in newly enforced Bharatiya Nyaya Sanhita (BNS), 2023
Babushahi Bureau
Chandigarh, July 1, 2024: Hemant Kumar, Advocate in Punjab and Haryana High Court pointed out discrepancies in the provision pertaining to Punishment for Rape in the newly enforced Bharatiya Nyaya Sanhita (BNS), 2023.From today 1st July 2024, three new Criminal Laws, as enacted by Parliament of India in December 2023 have come into force.
While Bharatiya Nyaya Sanhita (BNS), 2023 replaces 164 years old Indian Penal Code (IPC),1860, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 subsumes 51 years old Code of Criminal Procedure(CrPC), 1973 while Bharatiya Sakshya Adhiniyam(BSA), 2023 has replaced 152 years old Indian Evidence Act (IEA), 1872.
Meanwhile, amidst enforcement of the aforementioned three new Criminal Statutes, Hemant Kumar, an Advocate at Punjab & Haryana High Court, Chandigarh has pointed out a grave anomaly/discrepancy in both Sections 64(1) and 68 of BNS, 2023 vis-a-vis their corresponding provisions in First Schedule to BNSS, 2023.
The Advocate said that section 64(1) of BNS, 2023 (corresponding to Section 376(1) of erstwhile IPC, 1960) mentions that 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 10 years, but which may extend to imprisonment for life, and shall also be liable to fine. However, in the corresponding First Schedule to BNSS, 2023 which pertains to Classification of Offences, Punishment for Rape has been specified as Rigorous Imprisonment for not less than 10 years but which may extend to imprisonment for life and fine.
Similar is the case with Section 68 of BNS, 2023 (previously Section 376C of erstwhile IPC, 1960) which pertains to Sexual Intercourse by a person in authority. In ibid legal provision too, the words- rigorous imprisonment of either description have been used therein however its corresponding provision in BNSS, 2024 only the words -rigorous imprisonment have been used.
Hemant argues that when the term 'rigorous' is itself mentioned in the aforementioned two Sections of BNS, 2023 viz. Sec 64(1) and 68, then why the term 'either description' appears thereafter which means either Rigorous, that is with hard labour, or else Simple as per Section 4 of BNS, 2023. When the word "rigorous" has been used, then further usage of words "either description" makes it contradictory.
"Hence, in view of the above, there is clear discrepancy pertaining to Punishment for Rape in Section 64(1) of BNS, 2023 as well as Sexual Intercourse by a person in authority in Section 68 of BNS, 2023 and their corresponding provisions (entries) in First Schedule to BNSS, 2023," asserted Hemant
The Advocate also revealed that it has now been over eleven & a half years since the occurrence of the infamous Nirbhaya incident in the National Capital of Delhi on the fateful night of Dec 16, 2012.
Pertinent that in the aftermath of Nirbhaya gruesome incident, the then Dr. Manmohan Singh led UPA-2 dispensation on Feb 3, 2013 amended (read strengthened) Anti-Rape law i.e. by enacting amendments in both substantive and procedural Criminal Laws including then Sec 376 of Indian Penal Code (IPC), 1860 providing for stringent punishment for Rape via promulgation of Criminal Law (Amendment) Ordinance, 2013.This Ordinance later got passed by the both Houses of Parliament and consequently became an Act of Parliament in April, 2013. Then existing
Section 376(1) IPC as then amended laid down that
"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_____". Similar was the case in then amended Section 376 C IPC too.
"The description of punishment of both offences as mentioned in then First Schedule to then Code of Criminal Procedure (CrPC), 1973 described corresponding punishment as Rigorous only. Be that as it may, this grave anomaly/error continued unabated and perhaps it also didn't came to anyone's notice when Modi Sarkar in April, 2018 promulgated an Ordinance and later enacted an Amendment Act to further strengthen the Anti Rape Law since although the minimum term of imprisonment in Section 376(1) IPC got increased from then 7 years to 10 years but unfortunately the above anomaly i.e. "rigorous imprisonment of either description" was not rectified," he mentioned.