Journey From IPC To BNS Junction - Where Valence Splits Apart
Author: LawSphereX
Category: Criminal Law
Published:
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JOURNEY FROM IPC TO BNS JUNCTION: WHERE
VALENCE SPLITS APART
Mimansa Mittal, Jindal Global Law School, O.P. Jindal Global University, Sonipat Suraj Mittal, Jindal Global Law School, O.P. Jindal Global University, Sonipat
ABSTRACT
This article critically examines the disparities existing between the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS) concerning gender inclusivity, shedding light on the prevailing societal perceptions towards gender fluidity. The research meticulously dissects the challenges and constraints in acknowledging and navigating the intricate spectrum of gender identities. Despite the anticipation for the Bharatiya Nyaya Sanhita to embrace and reflect gender fluidity in its legal framework, both the IPC and the BNS display inadequacies in effectively accommodating the diverse range of gender identities present in society. It is imperative to swiftly implement a more flexible and adaptive legal structure that can adequately address the complexities of gender inclusivity in the contemporary landscape.
This empirical research is strategically designed to offer guidance to policymakers in formulating a holistic and all-encompassing strategy towards understanding and embracing gender fluidity within the legal framework.
Introduction This study delves into the disparity between the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS) in addressing gender inclusivity, specifically focusing on Sections 354 (C&D) of IPC and Sections 77&78 of BNS. The research highlights the evolution of societal values towards genderfluidity and the inadequacy of these legal frameworks in acknowledging and addressing the complexities of gender. Despite the expectation that BNS would recognize and accommodate genderfluidity, the legislation remains inadequate in addressing the nuances of gender. 1 The IPC, enacted in 1860, was inherently insufficient in addressing gender equality, and the BNS, despite being a more recent legislation, still falls short in acknowledging the fluidity of gender identities.
2 The research underscores the critical need for a more inclusive and adaptive legal framework that recognizes and addresses the diverse experiences of gender inclusivity in today's generation. By examining the gaps in these legal frameworks, this study aims to inform policymakers and legislators about the imperative need for a more comprehensive and inclusive approach to addressing gender fluidity. Emphasis on the Inadequacies of the IPC in Addressing Gender Fluidity The analysis embarks on a critical examination of the transformative journey from the IPC to BNS junction, with a particular focus on valence conundrum. Valence in human behavior symbolizes the fluidity of gender, illustrating a natural, seamless shift across identities. However, in the rigid frameworks of IPC and BNS, this valence-and thus gender fluidityfinds no place.
The IPC being a colonial legislation, has long been the cornerstone of India’s criminal justice system. However, with the evolving societal landscape and the growing recognition of genderfluidity, the need for a more nuanced and inclusive framework has become increasingly pressing. Section 354 of the IPC and Section 77 and 78 of the BNS, highlights the limitations and ambiguities of these provisions in addressing the complexities of gender identity. 1 Srishti Singh, Is IPC Gender Biased ? Aishwarya sandeep (2023), https://aishwaryasandeep. in/is-ipc-genderbiased-2/ (last visited Jul 8, 2023)
2 Jessica Klein, “gender fluidity”: The ever-shifting shape of identity BBC News (2022),
https://www.bbc.com/worklife/article/20220914-gender-fluidity-the-ever-shifting-shape-of-identity (last visited Jul 8, 2024)
Through a critical discourse analysis, the valence goes apart, where the traditional binary understanding of gender is challenged by the emergence of non-binary and LGBTQIA+. 3 Through the concept of valence, this research aims to problematize the dominant heteronormative paradigm and advocates for a more inclusive and adaptive legal framework that acknowledges the fluidity of gender. Ultimately, this study seeks to contribute to a more comprehensive understanding of the intersections between law, gender, and identity, paving the way for a more equitable and just society. Furthermore, IPC had inherently been insufficient in addressing gender fluidity. 4 For instance, Section 354 of IPC mentions “women” as victim and only “man” as offender. 5 To establish on this fact, assault, or criminal force according to IPC are not considered gender neutral.
Section 354(A) and (B) of IPC concisely embarks on harassment, punishment and use of criminal force done only against women. The colonial legislators used to believe that words like naked, pornography, sexually colored remarks were used only against women by the man and did not realize the importance of every gender. Concerning modesty, the relation of this word strictly to women alone has also been criticized. 6 This suggests that man could be insulted or intimidated in our community, but they would not incur any penalty and therefore it cannot be said that it is a criminal act. It reinforces again the societal values where females are seen as precious carriers of virtue that should be defended and conserved while for males it portrays them as people who can go through anything no matter how much it infringes on their personal rights.
That’s why such an idealizes condone brutal sexual offences on men while only viewing women as victims. Additionally, Section 354© and 354(D) of IPC, which address voyeurism and stalking, use broad gender-neutral terms but are currently applied only to cases involving women. This should not be gender specific. Section 354© of the IPC addresses voyeurism using the term “any man”, but also includes “any other person” suggesting a gender-neutral application. This 3 Eliot Hetterly & Jasneet Aulakh, LGBTQ+ rights in India Fulbright to India Guide – 2021-2022 (2020), https://fulbrightindiaguide. org. in/lgbtq-rights-in-india/ (last visited Jul 8, 2024). 4 Sarah Parker, Gender fluidity SpringerLink, https://link. springer. com/chapter/10. 1057/9781137505545_19 (last visited Jul 8, 2024).
5 K.V.K Sundaram, Indian Penal Code 261–261 (42 ed. 1971).
6 Urvi Malhotra, Section 354 Indian Penal Code : Outraging the modesty of woman- Complete Explanation IPC Century Law Firm (2023), https://www.centurylawfirm.in/blog/section-354-ipc/ (last visited Jul 8, 2024).
contrasts with Section 354, which specifically pertains to offences against women, creating a discrepancy in the law’s treatment of gender-related crimes. The IPC’s gendered language in offence descriptions and victim specifications has led to inadequate protection for individuals who do not identify with traditional gender categories. The Bharatiya Nyaya Sanhita (BNS) aimed to address these limitations by making various offences gender-neutral. However, a closer examination reveals that it has not fully acknowledged genderfluidity, leaving significant gaps in its approach to gender equality. Bharatiya Nyaya Sanhita (BNS): A Missed Opportunity Concerning modesty, The BNS objectives and justifications, for example, elaborate that “several crimes have become gender neutral”. 7 However, this does not apply the crime of rape.
Indeed, only two provisions in the category of “criminal force, assault and voyeurism on women” haven been made gender-neutral. Still a woman is targeted as the prey for all these crimes but these sexual offences of assault with intent to disrobe (Section 76 of BNS) and voyeurism (Section 77 of BNS) are punishable irrespective of whether perpetrator is male or female. Strangely enough, sexual harassment (Section 75 of BNS) and stalking (Section
78 of BNS) remain offences that can be committed by men. The Indian Legal system must
move beyond traditional gender categories to ensure that all individuals, regardless of their gender identity, are protected from sexual violence and other forms of discrimination. BNS, however, puts gender into three groups: male, female and transgender. For this reason, “transgender” encompasses those transwomen who have undergone or not undergone sexual reassignment surgery but identify as women and those individuals who are born males yet identify themselves as females. The classification is unfortunate because these individuals cannot be classified as women legally. Hence why rape of them is not recognized by the law. Also, BNS does not provide for punishment of sexual assault against transgender persons vulnerable to sexual violence.
The Indian judiciary has made significant changes in recognizing the rights of LGBTQ+ individuals, as evident in the landmark judgements of National Legal Services Authority v
7 The Bharatiya Nyaya Sanhita, 2023, 27–28 (2023).
Union of India (2014). 8 The Transgender Persons (Protection of Rights) Act, 2019 represented the sole legislative initiate to codify the rights and entitlements of the transgender community. In a similar vein, the Supreme Court, in 2018, delivered another landmark ruling on gay rights through Navtej Singh Johar v Union of India. 9 Furthermore, this ruling not only decriminalized consensual same-sex acts conducted in private but also it asserted the need for appropriate measures to be implemented by the State to gradually achieve economic, social and cultural rights. However, the recent introduction of the BNS presents a missed opportunity to codify and extend these protections to the LGBTQ+ community. 10 The BNS’s omission of LGBTQ+ individuals are striking, particularly in the content of sexual violence.
BNS could have been more inclusive by broadening the definition of rape to encompass victims of any gender and modifying Section 377 of the IPC to explicitly safeguard against sexual offences affecting LGBTQ+ individuals, animals, and children. The failure to do so undermines the progressive realization of rights doctrine and perpetuates the invisibility of LGBTQ+ individuals in Indian legislation. The BNS was anticipated to enhance the advancements achieved by the Transgender Persons (Protection of Rights0 Act, 2019, and the significant rulings of the Supreme Court regarding LGBTQ+ rights. Nevertheless, the BNS has not succeeded in completely integrating these principles, thereby perpetuating the constraints of the IPC. Conclusion Gender biased laws are a frequent occurrence in India.
Due to this mindset, many groups have been deprived of the equal privileges the Constitution of our country promises. There is a critical need for a more inclusive and adaptive legal framework that can effectively address 8 Jayna Kothari, The Supreme Court trans-formed The Hindu (2019), https://www. thehindu. com/opinion/oped/the-supreme-court-trans-formed/article24949441. ece (last visited Jul 8, 2024). 9 Gautam Bhatia, “civilization has been brutal”: Navtej Johar, Section 377, and the Supreme Court’s moment of atonement Constitutional Law and Philosophy (2018), https://indconlawphil. wordpress. com/2018/09/06/civilization-has-been-brutal-navtej-johar-section-377-and-thesupreme-courts-moment-of-atonement/ (last visited Jul 8, 2024). 10 Kanav Narayan Sahgal, The BNS: A missed opportunity for gender inclusivity and LGBTQ+ rights Deccan Herald (2023), https://www. deccanherald.
com/opinion/the-bns-a-missed-opportunity-for-gender-inclusivityand-lgbtq-rights-2694568 (last visited Jul 8, 2024).
the diverse experiences of gender inclusivity in contemporary society. The Indian Legal system must undergo a paradigm shift to truly ensure fairness and safeguarding for everyone. Regulations need to be updated to clearly encompass and safeguard people of all gender identities. This involves reexamining the definitions and rules concerning sexual crimes, making sure they are truly gender-neutral and inclusive. Only by doing this can the legal system successfully fight against sexual violence and discrimination, respecting the guidelines established in the constitution and progressing towards a fairer and more equal community.