Author
Prof Mrinal Seekay Satish
Organisation/Institution
National Law School of India University
Country
INDIA
Panel
Criminal Law
Title
Locating the Victim of Sexual Offences in India’s new criminal laws
Abstract
The Indian Parliament enacted three criminal legislations in 2023 to replace the existing Indian Penal Code (IPC), the Criminal Procedure Code (Cr.P.C.), and the Indian Evidence Act (IEA). One of the stated aims of these legislations – the Bharatiya Nyaya Sanhita (replacing the IPC), the Bharatiya Nagarik Suraksha Sanhita (replacing the Cr.P.C.) and the Bhartiya Sakshya Adhiniyam (replacing the IEA), that came into force in July 2024 – is to give precedence to offences against women and provide a victim-centric framework to criminal laws. I examine these claims in this paper, using laws on sexual violence as the frame. To do this, I will rely on theoretical frameworks, and the position in other Asian jurisdictions, including Singapore, Malaysia, and Sri Lanka. The most significant change that the Bhartiya Nyaya Sanhita (BNS) makes to sexual offences law is the addition of a provision on "sexual intercourse using deceptive means." Defined as an offence that ‘does not amount to rape’, section 69 of the BNS is meant to criminalize cases where consent to sexual acts was obtained by using deceitful means or by making a false promise of marriage. I will critically analyze the intent, wording, and possible interpretation of section 69 using existing Indian court judgments, rape provisions in Asian jurisdictions, and the jurisprudence on sex by deception in the United Kingdom, and the United States. I will argue that section 69 is detrimental to a woman’s sexual agency, and may actually lead to sex by deception going unpunished. It is also a reinforcement of morality of pre-colonial times, rather than an exercise at decolonization, which was the stated aim of enacting new criminal laws. I will also use sexual offences as a frame to examine changes in criminal procedure – from initiation of criminal cases, to collection of evidence, and the trial process – to argue that the changes are regressive, and make it more difficult for a victim to access, and get relief from the criminal justice system.
Biography
I am a Professor of Law, and Dean (Research) at the National Law School of India University, Bangalore (NLSIU). A graduate of NLSIU, and Yale Law School, I specialize in criminal laws. My book – “Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press)” is an updated version of my doctoral dissertation at Yale. I have formerly been the Chairperson of the Delhi Judicial Academy, a Professor at the National Law University, Delhi, and an Assistant Professor at the National Judicial Academy, Bhopal, India. I have been actively involved in law reform in criminal law. I was part of the research team that assisted the Justice Verma Committee that recommended changes to Indian rape laws in 2013. I have been appointed by the Delhi High Court as amicus curiae in matters involving criminal law issues. I have assisted the Law Commission of India in drafting reports on the death penalty, and bail law, among others. My research and publications are in areas including sexual offences, sentencing, plea bargaining, reproductive justice, preventive detention, medical jurisprudence, and the interface of criminal law with constitutional law.
