Evolving Jurisprudence On Consent And Sexual Autonomy Under BNS: A Socio Legal Study
- IJLLR Journal
- 7 hours ago
- 2 min read
Arpita Mohapatra & Aman Sai, SOA National Institute of Law
ABSTRACT
This paper explores the shift in Indian criminal jurisprudence from the Indian Penal Code to Bharatiya Nyaya Sanhita, specifically examining the evolution of “consent” and “sexual autonomy”. While the Indian Penal Code was deeply rooted in British authority and retributive punishment, the BNS focuses on citizen centric and promotes retributive punishment whose ultimate goal is the restoration of justice. The paper examines the widened the definition of “rape” and the shift from earlier the Indian Penal Code passed through Criminal Amendment Act of,1983 to Criminal Amendment Act of 2013 to Criminal Amendment Act of 2018 before reaching the final answerable approach to all circumstances i.e., Bharatiya Nyaya Sanhita, 2023. The passage includes various types of non-consensual penetration and emphasizes that lack of physical resistance does not imply consent. The paper further analyzes the legal protection of sexual autonomy through the lens of the BNS, which introduced a distinct offence involving obtaining consent and engaging sexual intercourse by giving false promise of marriage. By separating these acts from the traditional definition of rape, the law seeks to punish the predatory manipulation while distinguishing it from violent assault. Additionally, the paper describes how medical intervention such as the “two-finger test” indirectly characterizes victim and has been declared violative of fundamental rights under Articles 14 as well as 21 of Indian Constitution. It emphasizes the narrow interpretation arising from the orthodox mindset of the people regarding the “that habitual act of sexual act leads to give imply consent in a specific act”. It addresses one of the most controversial and grave issues regarding marital rape which has not been decriminalized and introduces sexual intercourse without consent of a wife by a husband during judicial separation. It restores the legal veto power of the woman during judicial separation. It shows the passage of marital rape cases to increase in the age of consent to 18years. It safeguards the subjective autonomy and freedom of mind of victims within the Indian legal system.
Keywords: Sexual autonomy, Bharatiya Nyaya Sanhita, Vitiated consent, Deceitful promise, Bodily integrity.
