Criminal Law Bills: Retaining Section 377 And Adultery In Gender-Neutral Form Among Recommendations By Parliamentary Committee

Retaining offence of adultery by making it gender neutral, restricting use of handcuffs for economic offences, and replacing words like 'mental illness' with 'unsound mind' are some of the recommendations made by department-related Parliamentary Standing Committee on Home Affairs for the three bills aimed at reforming criminal laws in the country.

The Committee adopted its reports on the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam bills earlier this month and submitted them to Rajya Sabha Chairman Jagdeep Dhankhar. At least eight opposition members in the panel -- Adhir Ranjan Chowdhury, Ravneet Singh, P Chidambaram, Derek O'Brien, Kakoli Ghosh Dastidar, Dayanidhi Maran, Digvijaya Singh and N R Elango -- have filed separate dissent notes opposing various provisions of the bills.

Here are some of the key recommendations made by the committee:

Partially retaining Section 377 of IPC in gender neutral form

While the Supreme Court struck down Section 377 of IPC and decriminalised all private consensual sexual acts between legal adults including homosexuals in 2018, the provision still remains applicable in cases of non-consensual carnal intercourse between adults, all acts of carnal intercourse with minors, and acts of bestiality. 

The BNS, which will be replacing the IPC, makes no such provision for the aforementioned acts. Hence, the Committee has recommended that to align with bill's objective of moving towards gender neutral offences, Section 377 of the IPC should be retained to the extent that it punishes the acts that the Supreme Court did not decriminalise, according to a report by Bar and Bench. 

Retaining offence of adultery

The Supreme Court in 2018 struck down Section 497 (adultery) of IPC which penalised a man for engaging in sexual intercourse with another man's wife. 

The apex court had observed that the law was archaic, arbitrary and paternalistic and infringed upon a woman’s autonomy, dignity and privacy as it penalised the married man and reduced the married woman to be a property of her husband. The Committee has now taken the view that there is a need to safeguard the sanctity of the institution of marriage by retaining adultery in a gender neutral form, i.e. making both the man and woman equally liable. 

Replacing 'mental illness' with 'unsound mind'

The Committee noted that the term 'mental illness' is too wide a term and could be interpreted to include mood swings or voluntary intoxication during the trial of an accused. This could create problems as an accused person may simply show that he was intoxicated during the time of the commission of crime and he cannot be prosecuted even if he has committed the crime without intoxication. 

Restricting use of handcuffs 

The Commitee observed that although the use of handcuffs is appropriate only for heinous crimes, a blanket application of the proposed provision under Section 43(3) allowing the use of handcuffs for 'economic offences' would not be suitable. The term 'economic offences' could also include petty offences, it noted.

Meanwhile, opposition leaders alleged that the use of Hindi names for the Bills was unconstitutional and an affront to the non-Hindi speaking people.

Some of them also flagged a lack of consultation before finalising the reports.  TMC's O'Brien claimed that approximately 93 per cent of the existing criminal law remains unaltered, 18 out of 22 chapters have been copied and pasted implying that the pre-existing legislation could have been effortlessly modified to incorporate these specific changes.  He also alleged "glaring gaps" in the methodology of drafting the report.