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1 year on, discrepancy persists in BNS rape law language: HC Advocate flags anomaly
Babushahi Bureau
Chandigarh, July 1, 2025: Exactly a year after the historic overhaul of India's criminal justice system through the enactment of Bharatiya Nyaya Sanhita (BNS), 2023, a serious discrepancy in the language of two key provisions dealing with rape and sexual offences has been flagged by Advocate Hemant Kumar, practicing at the Punjab and Haryana High Court.
The Bharatiya Nyaya Sanhita, along with Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and Bharatiya Sakshya Adhiniyam (BSA), 2023, came into force on July 1, 2024, replacing colonial-era laws including the Indian Penal Code, Code of Criminal Procedure, and the Indian Evidence Act, respectively.
However, Advocate Hemant Kumar has pointed out a textual inconsistency between Sections 64(1) and 68 of the BNS, 2023 — which deal with punishment for rape and sexual intercourse by a person in authority, respectively — and their corresponding entries in the First Schedule of BNSS, 2023.
"Rigorous Imprisonment of Either Description" — A Legal Contradiction?
Section 64(1) of BNS, which replaces Section 376(1) of the IPC, 1860, states: “...shall be punished with rigorous imprisonment of either description for a term not less than 10 years, which may extend to imprisonment for life, and shall also be liable to fine.”
Similarly, Section 68 of BNS — formerly Section 376C of IPC — uses the same phrasing.
However, in the First Schedule of BNSS (which classifies offences and punishments), the corresponding punishment for these offences is mentioned simply as "rigorous imprisonment", without the phrase "of either description".
Advocate Hemant questions this contradiction:“If the word ‘rigorous’ is already used, why add ‘of either description’, which includes both simple and rigorous imprisonment as per Section 4 of BNS? This is legally redundant and misleading,” he stated.
Hemant Kumar noted that this very anomaly dates back to the post-Nirbhaya reforms in 2013, when the then UPA government amended Section 376 of the IPC through an ordinance (later passed as an Act).
Despite multiple revisions — including those made under the Modi government in 2018 — the language inconsistency in the description of punishment remained uncorrected.
Even after the criminal law codification in 2023, the anomaly has reappeared in the BNS, raising concerns over legislative oversight in sensitive legal areas such as sexual violence.
Advocate Hemant has appealed to the President of India Droupadi Murmu, Prime Minister Narendra Modi, Home Minister Amit Shah, and Union Minister for Law & Justice Arjun Ram Meghwal to take urgent legislative action.
“This discrepancy can only be legally resolved by introducing and passing a BNS (Amendment) Bill in Parliament,” Hemant emphasized.