Lecture 26 - The Offence of Rape and Associated Provisions under Sections 64-73 of BNS

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[00:00:03][music] [music] So let's move to section 64 of BNS.

[00:00:22]Please look at the language of section 64 clause one in your barracks.

[00:00:27]The provision states whoever except in the cases provided for subsection 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 per life and shall also be liable to fine. So clause one of section 64 outlines a punishment for individual who commits rape except in the specific aggravated circumstances circumstances listed in subsection two.

[00:00:56]This clause deals with the punishment part which we will pick up later in the discussion. Let's discuss clause 2 section 64. Here it talks about circumstances where the punishment is enhanced when the offender abuses a position of authority. So when the offender is in when the offender is in position of authority, trust or committed the act in a specific vulnerable context, then the act of rape would be an aggravated act of rape. Offender in a who can be an offender in a position of authority. Enhanced punishment is attracted for the offender. So let's see who can be an offender here. Police officer, it is given in clause A of section 64.

[00:01:40]public servant clause B member of armed forces clause C then in clause D section 64 subsection clause two management or staff of jail or correctional facility or any other place of custody established by law. Then relative guardian teacher person in position of trust or authority. One thing should be noted here that rape is an aggravated offense when the victim is under their trust or care. It is a mandatory thing.

[00:02:11]It is there in the language of section 64 subs. So please go through the language of section 64.

[00:02:17]So these persons when in authority abuse their authority and commit rape against their care or protection, they would be liable for aggravated offense of rape. The focus here is on the abuse of power and authority. The law recognizes that rape committed by a person in a position of trust is far more Heous example doctor committing rape of patient or police officer committing a rape of someone who is in police station. Rational behind this rational for enhanced punishment punishment for these offenders is that the victim in these circumstances are often less able to report or resist due to institutional or systematic pressure. Let's look at some more circumstances of aggravated offense.

[00:03:07]Vulnerability of the victim is also important means or when is the offense committed during communal writing violence. During communal or sectarian violence or when or on a woman whom the man knows to be pregnant. This is there in clause F during communal and sectarian violence is given in clause G.

[00:03:35]on a woman incapable of giving consent.

[00:03:38]I clause I clause K says rape on a woman by person in control or dominance over that woman. Then on a woman who is physically or mentally disabled. Clause J talks about the situation where the offender while committing rape causes grievous bodily harm or names or disfigures or endangers the life of the woman. And the clause M talks about the rape by an offender repeatedly coming committing the offense against the same woman.

[00:04:12]So we have covered all these uh circumstances all these situations when the rape is considered an aggravated offense of rape. Please go through the language of the section. Let's see the penalties.

[00:04:26]The punishment for rape is given in section 64 subsection 1 and for aggravated offense of rape it is there in section 64 subsection 2. Let's discuss and look at the changes from IPC to BNS. The punishment under section 64 subsection 2 for general rape is minimum 10 years which can extend up to life imprisonment along with fine. So the rape when not aggravated offense the punishment is minimum 10 years which can extend to up to life imprisonment along with fine. The key change from BNS the key change from IPC to BNS is the elevation of the minimum punishment for general rape from 7 to 10 years. Earlier it was 7 years now it is minimum is 10 years. So this change signals the legislative intent to treat all cases of rape with even greater severity. Let's see the punishment for aggravated offense of rape. It is there in subsection 2 of section 64. It is 10 years to life imprisonment along with fine. Life imprisonment here means imprisonment for the remainder of natural life of the convict.

[00:05:37]This is very important. Mandatory fine and compensation is there. It is there.

[00:05:42]it it must be just and reasonable and must be paid to the victim for medical expenses, rehabilitation and maintenance. In addition, the the fine imposed in these sections is in addition to any other compensation under state victim compensation scheme. We now move to section 65 of the BNS which deals with the aggravated forms of rape where the primary factor escalating the sentence is the age of the victim. This uh this provision is a direct direct continuation of the policy established post 2013 to ensure robberous production protection for children. To trigger this section, we must first confirm the commission of rape under section 63. The aggregating factor then kicks in based on the victim's age. For a victim under 16 years of age which is given under section 65 subclause one under 16 years of age the punishment is minimum the punishment is minimum 20 years of rigorous imprisonment which can extend for life the offender's natural life. So the min minimum punishment of 20 years but which can extend up to life imprisonment meaning natural life of the offender plus fine. This is a significant jump from the 10 year minimum for general rate. And let's see if the victim is under 12 years of age then it is victim under 12 years of age which is given under section 65 clause 2 then the punishment is rigorous imprisonment for a term not less than 20 years which but which may extend to imprisonment for life and with fine or death. So uh here the punishment is uh one of the punishments could also be death penalty.

[00:07:31]Thus, this punishment is under within the rarest of the rare category due to extreme culpable culpability involved in the crime. Please note that the section explicitly provides that the fine under the section shall be just reasonable to meet the medical expenses and rehabilitation of the victim and that any other fine imposed under this section shall be paid to the victim.

[00:07:54]Dear learners, please also remember that while the BNS covers this, most cases involving victims under 18 years of age are tried under the box act of 2012 which has dedicated procedures and safeguards. The Supreme Court in cases such as Rajes Bush's state of UP consistently upholds the uh upheld has consistently upheld the legislative intent behind these enhanced punishment absolute deterrence and sentences that reflect the grievous harm caused to a child causing death or persistent vegetative state. Section 66 focuses on the consequence of sexual act making them the defining element of the crime severity. This is for cases where the act of rape is so brutal that it results in either the two tragic outcomes. The death of the woman or her entering into a persistent vegetative state. Either death either death or persistent vegetative state. What is persistent vegetative state? It is a state. It is a chronic condition where an individual appears awake but lacks awareness of their surrounding due to severe brain damage. The law treats PBS as being equivalent to death in terms of sentencing gravity and this reflects judicial awareness rooted in landmark cases like Aruna Shambar versus Union of India. PBS as you know is a long-term state of severe unconsciousness where BNS prescribes the highest penalties imprisonment for natural life person's natural life or death.

[00:09:33]Why? Because PBS is treated equivalent to death in terms of sentencing severity. Please look at the table on your slides. The offense under section 66 shifts the focus from the act of pray itself to the causerative link between the act and the battle consequences.

[00:09:52]Due to the potential for the death sentence, the trial under section 66 requires the highest stand highest standard of evidence particularly detailed medical evidence to establish establish this causation. Thus, the prosecution must establish a direct causitive link that is the injuries led to death or periods. So um this brings us to the end of part one of our discussion. We will continue with part two that is from section 67 onwards.

[00:10:19]Thank you. Welcome back dear learners.

[00:10:22]Let's begin with part two of our discussion. Let's begin with section 67.

[00:10:26]Section 67 replaces section 375B of IPC.

[00:10:32]Let's read the text of the section 67 first. Sexual intercourse by husband upon his wife during separation. Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than 2 years, but which may extend to a 7 year which may extend to 7 years and shall also be liable to fine.

[00:10:57]In this explan explanation in the section, sexual intercourse shall mean any of the acts mentioned in clauses A to D of section 63. This provision is carved out of a narrow exception to the marital rape exception found in SATA section 63. Section 67 of BNS acknowledges that consent remains essential even within marriage especially when the spouse is living separately from the husband. It reflects a shift in the India India's legal framework towards respecting individual dignity and bodily autonomy regardless of the marital status. The law recognizes that once a couple has decided to live separately. So there's a couple they have a valid marriage they have decided to live separately either under a code degree a decree or other wives otherwise otherwise here is included because to pro otherwise here is included to protect their wives. The most critical ingredient therefore is the separation status. Notice that the definition definition of separation is B broad broad. Notice that the definition of a separation is broad. It includes formal djour separation under a code decree.

[00:12:14]But critically it also includes de facto separation caused by strange men deserting desertion or mutual agreement even if they lack a formal court order.

[00:12:30]So if the husband then forces sexual intercourse on his wife who must be 18 or above without her consent during this formal separation, he commits the offense.

[00:12:40]Please note the crucial distinction here. He is not charged with rape under section 63 but with a separate offense under section 67 which carries a lesser but still significant punishment of between 2 to 7 years. That is a punishment. That is the punishment shall not be less than two years but which may extend to seven years and shall also be liable to fine. This distinction underscores the legislative intent to partially recognize wives independence upon separation without fully abolishing the marital grief exception. Section 68 sexual intercourse by a person in authority. Section 68 of Bharti addresses situations where a person in a position of authority engages in sexual intercourse with someone under their influence or control. This provision criminalizes the abuse of power in cases where consent is obtained through misuse of authority recognizing that the coercive recognizing the coercive power dynamics that can undermine true consent. Now let's read the language of section 68.

[00:13:50]Sexual intercourse by a person in authority. If a person pos if whoever being in a position of authority or in fiduciary relationship. What is fiduciary relationship? It a fuciary relationship is a legal or ethical bond where one party is obligated to act in the best interest of another party.

[00:14:12]Let's move to the clause B. It says a public servant, a superintendent or manager of a jail, remand, home or other place of custody established by or under any law for the time being in force or or a woman's or children's institution on the management of a hospital or being the staff of a hospital. So whoever abuses such power of fiduciary relationship to induce or seduce any woman either in his custody or in his or under his charge or present in the premise to have sexual intercourse. Such sexual sexual intercourse not amounting to the offense of rape shall be punished. It does not amount to the offense of rape but it is an offense and it is punishable. Such person shall be punished with rigorous imprisonment of either description for a term which shall not be less than 5 years but which may extend to 10 years and shall also be lied to fine. So 5 to 10 years of punishment will be given along with fine.

[00:15:20]Section 68 targets the abuse of official power or position to co sexual relations. This isn't purely about physical force. It is also about overwhelming power dynamics that compromises with the victim's consent.

[00:15:35]This law covers persons in position of trust or control such as superintendent, managers, doctors or educators, particularly those in institutions like hospitals, jails or educational facilities. The core of the crime is that the accused induces or seduces the woman who is under his charge to submit.

[00:15:58]The law deems any consent obtained in an in environment in this environment as meaningless because it is essentially visiated due to the durist inducement of fear arise arising from the accused authority.

[00:16:13]So the law considers that if any consent is obtained here, it is already visitated because it is based on duress that is threat inducement or fear related to the authority. Let's take an example. A doctor having sexual intercourse with a patient even if she verbally agrees is exploiting the fiduciary relationship or the patient's inherent vulnerability. Doctor would be liable under this section. The punishment is rigorous. It is an imprisonment from 5 to 10 years reflecting the serious breach of The punishment is rigorous imprisonment from 5 to 10 years. Why this is rigorous imprisonment? Because it breaches the trust of public. Please have a look at this slide to understand the options of section 68 more clearly. Section 69, sexual intercourse by employing deceitful means. Let's read the section first. Whoever by deceitful means or by making promise to marry a woman without any intention of fulfilling the same has sexual intercourse with her.

[00:17:21]Such sexual intercourse not amounting to offense of rape shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Explanation deceful means deceitful means shall include enducement for or false promise of employment promotion or marrying by suppressing identity. Section 69 is a new dedicated section in the act. This provision formally codifies decades of judicial interpretation regarding consentiated by deceitful means. It addresses sexual interos that does not technically meet the definition of rape under section 63 but where consent is secured through fraud or misrepresentation.

[00:18:08]Through fraud or misrepresentation. The law is focused on situations including false promise to marry where the man had no intention of fulfilling the promise at the time it was made. That is since the beginning there was no intention to marry. This is what we call ab initial fraud from the beginning. It also covers using false promises of employment or promotion or suppression of identity like concealing varietal status cast to induce belief in a relationship that does not exist. The essence is that woman's consent is based on fundamental misconception of fact created by the accused de deception.

[00:18:54]The penalty for this specific crime is imprisonment up to 10 years and fine.

[00:19:00]The primary legal hurdle which we will discuss next is proving that the intention was fraudulent from the very outset from the very beginning.

[00:19:10]Please go through the slide carefully.

[00:19:13]As you can see, the application of section 69 hinges entirely on the mental element menry of the accused in a time the promise was made. To successfully prosecute a case under section 69, the court must carefully differentiate between a false promise and a simple breach of promise. As our table illustrates, the difference hinges entirely on the mensria or the mental element of the accused at the time of the promise was made. If a man genuinely intended to marry at the time of the sexual act but later due to the change of heart or unforeseen circumstances breaks the promise that is breach of promise and not an offense under this section as relationship was initially consensual. However, if the promise was dishonest from the very start as highlighted in the case like Pmode Surya as highlighted in the cases like Pmote Surya Bhan Paw versus State of Maharashtra then it is a criminal offense. The prosecution's evidence in these cases, therefore, must focus heavily on revealing the man's dishonest intent, perhaps through evidence of evidences of concealed facts, a pattern of fraudulent behavior, or the immediate abandonment of a relationship after the objective was achieved. Section 70, gang rape. Section 70 provides that where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention each of those persons shall be deemed to have committed documents of rape. There are two clauses in this section based on the age of the victim or survivor 18 years or above under 18. For gang rape of a person of 18 years and above, the punishment is minimum of 20 years which may extend up to natural life of the person along with fine.

[00:21:12]Uh this is already a higher punishment than genuine rape. So let's see where the victim is a minor under 18 years of age. This is given under section 70 subsection uh uh sub clause subsection two. aggravated gang rape.

[00:21:29]The punishment is escalated to life imprisonment, the natural life or the death penalty along with fine. The section severity reflect India's stringent approach to the group sexual violence ensuring those involved in this kind of brutality face the highest possible legal action regardless of their specific role in the act. One important thing to note is regarding the fine under this section. BNS section 70 clearly stipulates that such a fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and that any fine imposed under the subsection shall be paid to the victim. This was also provided under section 65 as well. This was provided under 6 uh this was provided under section 65 as well. Section 71 punishment for repeat offenders. This is a critical deterrent law focusing squarely on recidivism. That is the tendency of a convicted criminal to reoffend. The law sends an unequivocal message of zero tolerance for habitual sexual offenders. If an indiv individual has been pre previously convicted of any of the most severe offenses under section 64, 65, 66 or 70 and is subsequently convicted of any of those same offenses, the most severe penalty is mandatory. The court is required to impose imprisonment for the remainder of person's natural life or the death penalty.

[00:23:17]The pro procedural mechanism dictates the procedural mechanics dictate that the trial first uh the procedural mechanics dictate that the trial first proves the subsequent offense and then the evidence of prior conviction is brought in. This provision is essentially aimed at protecting society from individuals who demonstrate a persistent and a dangerous habit for grave sexual violence justifying the most differential and harshest punishment under the act.

[00:23:57]Section 72. Section 72 is a vital safeguard for victim protection. Please look at the table on your slide. It strictly prohibits the disclosure of identity of the victim.

[00:24:09]This extends to printing, publishing any matter related to the court's proceeding. It includes photograph name etc. The purpose is clear to shield the victim from social stigma, humiliation and secondary victimization upholding the her right to dignity under article 21. Remember disclosure is only permitted when the written authorization of the victims.

[00:24:37]Next of kin or by a direct order of the court is there as it was laid down in npun saxenna versus union of India guidelines. The punishment for this is imprisonment up to 2 years along with let's see the BNS specific amendments and changes.

[00:24:57]Let's see the BNS.

[00:24:59]Let's see the specific amendments and changes in BNS. Bharti AI sanit retains the core principle of IPC but introduces critical adjustments. First marital is raised section under section 63 exception 2. It explicitly raises the minimum age of five for the marital rape exception from 15 to 18 years. This codifies the independent thought Supreme Court ruling. This is very important case.

[00:25:29]Please go through this case. Then second, the minimum sentence increased under section 64. The general minimum sentence for rape earlier was 7 years.

[00:25:40]It is now 10 years.

[00:25:43]There is definition continuity. There's no major definitional change. the expanded gender specific definition of uh penetration and the seven visiating circumstances from the 2013 IPC are retained without any major definition change. The marital rape exception status remains the same for wives above the marital rape exception status remains the same for wives age 18 or above. Section 69 was added in BNS in 2013.

[00:26:23]We've covered all these points. So let's move to uh let's look at the procedural protection for the victims. The procedure is given under BNSS.

[00:26:33]There's a provision for mandatory medical exam under section 184 of BNSS which corresponds to section 164A of CRPC. It mandates medical examination of the victim and the accused both the victim and the accused. The procedure for recording the evidence is under section 183 of BNSS which corresponds to section 167 of CRPC and as per this section the victim's statement must be recorded by a judicial magistrate.

[00:27:04]Maintaining the victim's privacy is very important. It is there in section 366 subclause 2 of BNSS and it mandates in camera trial which should not be an open court. It should not be in an open court. In camera trial is important for the victim to testify freely without the fear of and pressure of public setting. It also prohibits printing or publishing the victim's name or identifying details. This is absolute. Publishing the victim's name even with her permission can lead to criminal prosecution. The media and the public must strictly ader to using other names lees such as nirva x a y z etc. The provision for legal aid is given under section 341 bns. The victim is entitled to free legal aid or services. These procedural safeguards ensure that the process of seeking justice does not further victimize the survivor.

[00:28:10]Societal and constitutional implications. The offense of rape is not merely a crime against an individual but a fundamental breach of constitutional right. Also there's a violation of constitutional rights. Rape is a profound rape is a profound violation of victim's fundamental rights, right to life and liberty under article 21.

[00:28:33]It includes right to dignity, bodily integrity and autonomy.

[00:28:39]Gender equality point should also be noted. The offense directly addresses systematic gender inequality and violence against women under article 14 equality before law.

[00:28:49]This is linked to article 14. Let's talk about social stigma. The courts have a mandate to address the deep root rooted social stigma that often impedes the justice process leading to victims retracting statement or delaying justice. So it should also be addressed.

[00:29:08]One of the most important things is autonomy. The law champions the principle of bodily autonomy. This is very very important.

[00:29:17]A woman's decision over her body is paramount and cannot be negated by social pre pressure or archaic notions of honor. So uh this brings us to conclusion. We have covered almost everything that is important to understand rape to understand the offense of rape.

[00:29:36]So let's recap. The definition is expansive under BNS section 63. Rape now covers four types of penetration not limited to penal vag penile vaginal penetration. Then the consent is the key.

[00:29:54]In explanation two of section 63 consent is legally defined as unequivocal voluntary and specific. BNS is harsher.

[00:30:04]BNS increases the general minimum sentence of punishment from 7 to 10 years. We've already discussed this and it has also raised the marital rape exception age from 15 to 18 years.

[00:30:17]Judicial mandate courts must apply the presumption of lack of consent and rigorously exclude character evidence.

[00:30:25]This is also very important presumption of lack of consent section uh which was earlier dealt with in section 114A of Indians act.

[00:30:34]Uh one thing should be noted that uh there's a remaining challenge the marital rape exception for wives who are 18 or 18 plus and it remains the final frontier of reform.

[00:30:49]This continued to be debated and challenged in India's highest courts.

[00:30:54]So that's all for this topic. Thank you.

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