“AN ANALYSIS OF THE LEGAL TREATMENT OF SEXUAL OFFENCES AGAINST WOMEN UNDER THE BHARTIYA NYAYA SANHITA, 2023: CONTINUITIES AND REFORMS”
AUTHOR – MR. ATISHREY MISHRA, AMITY LAW SCHOOL LUCKNOW, AMITY UNIVERSITY UTTAR PRADESH LUCKNOW CAMPUS
BEST CITATION – MR. ATISHREY MISHRA, “AN ANALYSIS OF THE LEGAL TREATMENT OF SEXUAL OFFENCES AGAINST WOMEN UNDER THE BHARTIYA NYAYA SANHITA, 2023: CONTINUITIES AND REFORMS”, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (4) OF 2026, PG. 740-785, APIS – 3920 – 0001 & ISSN – 2583-2344.
Abstract: The IPC Legacy and the Decolonial Imperative
This dissertation provides an exhaustive doctrinal, procedural, and constitutional interrogation of the Bhartiya Nyaya Sanhita (BNS), 2023, within the context of India’s evolving criminal justice landscape. As the nation transitions away from the 163-year-old Indian Penal Code (IPC), 1860, this research evaluates whether the new Sanhita succeeds in its “decolonial” mission or merely provides a modern structural shell for colonial-era patriarchal logic. In an era where “Modern India” is increasingly rooted in a “women-centric” legislative philosophy, this study deconstructs the friction between the BNS’s structural prioritization of gender-based violence and its substantive linguistic continuities.
The research begins by tracing the Historical Evolution of Colonial Penal Logic, specifically the Victorian construct of “Modesty” utilized by Lord Macaulay to police female sexuality. By analyzing the jurisprudential shift from the Mathura Rape Case (1979) to modern milestones such as Independent Thought (2017) and Aparna Bhat (2021), the study demonstrates how the Indian judiciary—rather than the legislature—has been the primary driver of the transition from “honor-based” laws to a jurisprudence of “Bodily Autonomy and Dignity.”
A central pillar of this study is the Statutory Analysis of the BNS. The research acknowledges the significant Structural Reorganization achieved by the legislature in elevating “Offences Against Women and Children” to Chapter V. However, a granular, section-by-section comparative mapping reveals that core provisions, such as the definition of Rape (Section 63) and Outraging Modesty (Section 74), remain verbatim transpositions of the IPC. The most critical “void” identified is the Retention of the Marital Rape Exception, which this research characterizes as the ultimate colonial anchor, preserving the archaic “Hale Doctrine” of irrevocable matrimonial consent in direct contradiction to Article 21 of the Constitution.
The dissertation further explores the Deconstruction of Consent through the lens of the newly introduced Section 69 of the BNS. This provision, which criminalizes “Sexual Intercourse by Deceitful Means” (including false promises of marriage and suppression of identity), is analyzed as a landmark attempt to provide a “third way” between the binary of rape and total acquittal. However, the study subjects this section to intense constitutional scrutiny under Article 14, highlighting the “Gender-Binary Voids” that exclude male, transgender, and non-binary victims, thereby failing the test of “Equal Protection of the Laws.”
The procedural dimensions are addressed through the Synergy of the BNS, BNSS, and BSA. The research evaluates the “victim-centric” reforms of the Bhartiya Nagarik Suraksha Sanhita (BNSS), such as mandatory audio-video recording of statements and forensic scene visits. It integrates these with the Bharatiya Sakshya Adhiniyam (BSA), which elevates digital and electronic evidence to the status of Primary Evidence. While these are technologically progressive, the study identifies a “Crisis of Implementation” due to India’s massive forensic backlogs and the “Digital Divide,” which risks creating a hierarchy of justice based on technological access.
In its final synthesis, the dissertation argues that the BNS represents “Retrofitted Colonialism.” It concludes that for India to achieve a truly “decolonized” and “women-centric” code, the legislature must move beyond cosmetic restructuring. The research offers a “Sacred Blueprint” of Policy and Legislative Recommendations, including the absolute abolition of the marital rape exception, the adoption of an Affirmative Consent Standard, and the implementation of Victim Impact Statements (VIS) to pivot the system from pure retribution toward holistic Restorative Justice. Ultimately, this work asserts that true decolonization lies not in the Sanskritization of titles, but in the uncompromising recognition of every individual as the absolute sovereign of their own body.