Par panel recommends retaining IPC section 377, adultery provision

It also made a host of recommendations on provisions related to rape, gang rape and murder, among others.

New Delhi: The Parliamentary Standing Committee on Home Affairs has recommended to the government to retain IPC section 377 provisions related to carnal intercourse with minors and acts of bestiality in the proposed Bharatiya Nyaya Sanhita (BNS).

It also suggested that the IPC provision related to adultery should be retained in the Sanhita by making it gender neutral “for the sake of protecting the institution of marriage”.

The committee, headed by BJP MP Brij Lal, examined the BNS and two other proposed laws that will replace the related colonial-era legislations and submitted its report to the Rajya Sabha on Friday.

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It also made a host of recommendations on provisions related to rape, gang rape and murder, among others.

The government introduced three bills on the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) in the Lok Sabha on August 11 to replace the Indian Penal Code (IPC), 1860, Criminal Procedure Code (CrPC), 1898, and the Indian Evidence Act, 1872, respectively.

In its report, the parliamentary panel said it observes that a five-judge bench of the Supreme Court unanimously held that Section 377 of the IPC is in violation of Articles 14, 15, 19, and 21 of the Constitution.

Provisions of Section 377, however, remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

However, now, in the Bharatiya Nyaya Sanhita, no provision for non-consensual sexual offence against male, female, transgender and for bestiality has been made.

The committee feels that to align with the objectives stated in the BNS 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 of IPC in the proposed law.

On IPC provision on adultery (Section 497), the committee noted that the Supreme Court struck it down as it violated Articles 14, 15, and 21 of the Constitution.

The court held that this law was archaic, arbitrary and paternalistic and infringed upon a woman’s autonomy, dignity and privacy.

“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,” it stated.

The committee appreciates that the proposed Sanhita has raised the age of sexual consent for married women from 15 to 18 years with certain exceptions.

The panel welcomes the changes in gang rape law introduced in relevant sections of IPC.

The removal of age-based qualifiers to consider gang rape of any minor girl as an aggravated offence is in line with the position under the Protection of Children from Sexual Offences (POCSO) Act, it stated.

Further, the minimum sentence for gang rape of a minor girl under the Sanhita which is whole life sentence is greater than the minimum sentence under POCSO which is regular imprisonment for 20 years.

For the sexual intercourse by employing deceitful means, the committee has noted minor typographical error which needs correction and recommends replacing the word ‘marring’ in the explanation to clause 69 with ‘marrying’.

The committee also recommends addition of the words ‘or marital status’ after the words ‘suppressing identity’ in the explanation part of this clause, for the reason that there are a plethora of cases that have been decided by the judiciary wherein the accused has deceived multiple women into marrying him or having sexual intercourse with him without revealing that he is already married.

In case of the punishment for murder, the committee notes that the Sanhita includes a new provision for offence under clause 101(2) in line with the Supreme Court’s recommendation.

The issue regarding provision of an alternate punishment of seven years imprisonment to an accused under clause 101(2) was debated in detail in the committee.

The committee recommends to the government that the punishment of seven years from the clause may be deleted.

It is also recommended that opinion of the Attorney General and the Solicitor General of the country may be sought in this regard.

The panel said it has taken note of the milestone initiative of the government for bringing these legislations, which shall form the bedrock of the criminal justice administration.

The committee is of the view that the process of consultation undertaken has been exhaustive and comprehensive.

The committee appreciates the work done by the Ministry of Home Affairs and the Ministry of Law and Justice in undertaking this mammoth task of drafting comprehensive amendments to the criminal laws and four years of intense discussions for making new laws that imbibe Indian thought process and the Indian soul.

A comprehensive review of the country’s criminal justice system was a 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 noted that the proposed legislations are much-awaited and much-needed reforms as well as imperative for smooth and transparent functioning of the legal system.

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