In recent years, there has been a growing awareness and concern regarding sexual offenses and the need for stringent laws to address them effectively. In this context, Section 63 of the Bhartiya Nyaya Sanhita (BNS) stands as a crucial legal provision outlining the definition of rape, its bailable nature, and the corresponding punishment. Let’s go deeper into what this section entails:
Section 63 BNS (Bharatiya Nyaya Sanhita)
A man is said to commit “rape” if he engages in the following actions:
(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman, or makes her do so with him or any other person.
(b) Inserts, to any extent, any object or a part of the body (not being the penis) into the vagina, urethra, or anus of a woman, or makes her do so with him or any other person.
(c) Manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any part of her body, or makes her do so with him or any other person.
(d) Applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person.
These actions are considered rape under the following seven circumstances:
(i) Against her will;
(ii) Without her consent;
(iii) With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;
(iv) With her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(v) With her consent when, at the time of giving such consent, due to unsoundness of mind, intoxication, or the administration of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;
(vi) With or without her consent, when she is under eighteen years of age;
(vii) When she is unable to communicate consent.
Explanation 1. For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman, by words, gestures, or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act. However, a woman who does not physically resist the act of penetration shall not be regarded as consenting to the sexual activity solely due to that fact.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife provided the wife is not under eighteen years of age, is not considered rape.
63 BNS Bailable or Non-Bailable?
To clarify, Section 63 of the Bharatiya Nyaya Sanhita (BNS) describes rape as a non-bailable and cognizable offense. Let’s break down what this means:
In the case of rape under Section 63 of the BNS, being a non-bailable offence implies that if someone is accused of committing rape, they cannot be released from custody without a court order. They must go through the legal process of seeking bail, which may or may not be granted depending on the circumstances of the case.
Rape under Section 63 of the BNS is classified as a cognizable offence. This means that if someone is accused of rape, the police have the power to arrest them without a warrant and initiate legal proceedings based on the evidence available. It emphasizes the seriousness with which the legal system views allegations of rape and enables prompt action to be taken to ensure justice for the victim and accountability for the accused.
Rape Punishment Under BNS (Bharatiya Nyaya Sanhita)
Section 64 BNS defines Punishment for Rape.
64. (1) Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever,— (a) being a police officer, commits rape,—
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central Government or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape, on a woman incapable of giving consent; or
(j) being in a position of control or dominance over a woman, commits rape on such woman; or
(k) commits rape on a woman suffering from mental illness or physical disability; or
(l) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(m) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
Explanation.—For the purposes of this sub-section,—
(a) “armed forces” means the naval, army and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;
(b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861;
(d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.