Shamefully Misogynistic Section 69 Of Bharatiya Nyaya Samhita – Is This The Way Forward?
During the conduct of a project titled 'Project POSH' that I am part of, a student intern in utter dismay expressed her shock and disbelief at the new Section 69 of the then BNS Bill. I was happy at the political correctness and sensitivity in young law students, and uttered in hopeful soliloquy that the Bill might not be passed in that shape. It was disheartening to see the section in...
During the conduct of a project titled 'Project POSH' that I am part of, a student intern in utter dismay expressed her shock and disbelief at the new Section 69 of the then BNS Bill. I was happy at the political correctness and sensitivity in young law students, and uttered in hopeful soliloquy that the Bill might not be passed in that shape. It was disheartening to see the section in the Act as it was in the Bill.
Now that the Act has been brought into force, academicians and lawyers are trying to come into terms with the new names and sections probably more so than the content. Much of it is old wine in the old bottle, probably with a changed cork. In the process, additions and subtractions did happen. And damage too.
Chapter V of BNS Act bears the heading 'Of Offences against Woman and Child' under which Sexual offences are listed out. Section 69 falls in this segment with the marginal note 'Sexual intercourse by employing deceitful means, etc.' and states thus:
Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation.—“deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.
This section manifests with all chauvinism the ideals of protectionism on which misogyny feeds. On the one hand, chastity of women is endorsed as a virtue legally. Therefore, it is “in her (chastity's) interest” that the otherwise consensual sexual intercourse transforms to the offence of rape when there is no resultant marriage, and the promise to marry is proved to have been made without any intention of fulfilling the same. Several patriarchal norms are woven into the provision. Her consent for sexual intercourse when dependent on his promise to marry her, is subtly justified, and her chastity safeguarded. Therefore, when the promise was fake and sexual intercourse happens, it becomes an offence. The deep understanding that lawmakers still adhere to is that promise to marry is an enticement to women to consent to sexual intercourse, as otherwise it is disgraceful or even blasphemous.
Leaving the promises, fake, broken and failed aside, my uncompromising fury is on the explanation added at the fag end of the section. It defines “deceitful means” as including giving of false promise of employment or promotion as an inducement to have sexual intercourse with a woman, thereby making it an offence under the provision. I fail to understand whether this is an instance of poor drafting, non-application of legislative wisdom or the entire lack of it.
As a woman, I am primarily outraged at the misogynist legislative presumption that women naturally consent for sexual intercourse in return for employment/promotion. Most offensive is the use of the words “false promise of employment or promotion” making it an ingredient for constituting the offence. This is insensitivity clad with foolishness of the highest order. I am reminded of the judgment in P.V. Narasimha Rao v. State wherein it appeared that those Members of Parliament who took bribe and did vote in the House were protected under the garb of parliamentary privileges and immune from legal action whereas those who took bribe and did not vote in the House were bereft of such immunity. (The Narasminha Rao dictum of 1998 has been overturned by the Supreme Court in Sita Soren v. Union of India in March 2024 and made it clear that the earlier interpretation is against the spirit of parliamentary privileges and immunities spelt out in the Constitution).
Drawing academic analogy from the overturned Narasimha Rao rule, does the Explanation to S.69 mean that if a woman could be induced to sexual intercourse under a 'false promise of employment or promotion', the promisers must fulfil the promise and no offense is made out. Else, they would be committing an offense punishable with imprisonment that may extend to ten years and fine. That is, the act ceases to be an offense if the promise was not false. Section 69 is certainly shockingly misogynistic and against the fundamental premise of the element of quid pro quo involved in acts that amount to “sexual harassment' under the POSH Act. With the unfolding of the Bharatiya Nyaya Samhita, challenges on its constitutionality will hopefully bring in progressive feminist jurisprudence.
Dr. Sandhya Ram is an Associate Professor at V.M. Salgaocar College of Law, Goa. Views expressed are personal.