Unveiling The Veil Of Consent: A Comparative Doctrinal Assessment Of Legal Loopholes In Aggravated Sexual Offences Under India’s Bharatiya Nyaya Sanhita And The United Kingdom’s Sexual Offences Act
- IJLLR Journal
- Apr 21
- 2 min read
Ms. Swarnim Chaudhary, Assistant Professor, Quantum University, Roorkee
Mr. Snehasish Sarkar, B.B.A.LL.B.(H), Quantum University, Roorkee
ABSTRACT
The criminal law in sexual offences depicts the true moral and constitutional direction of a society. This study is a comparative study of rape and aggravated sexual offence jurisprudence, and in this case, the study is the evaluation of the legal provisions in India and the United Kingdom. With the Indian legislature replacing the old Indian Penal Code, 1860, with the newly adopted Bharatiya Nyaya Sanhita, 2023, the Indian legislature would decolonize its criminal law and modernize it. Nevertheless, a critical analysis of the text shows that the BNS arguably reinforces the existing patriarchal standards. It harbours such critical loopholes as the exception of marital rape, subjectivity of deceit, and strict, gender-specific definitions of victims and perpetrators. Contrastingly, the Sexual Offences Act (SOA) 2003 in the UK is a paradigm shift in the European law. It creates a quasi-gender-neutral model and an objective statutory grid on affirmative consent and reasonable belief.
The paper critically analyses the BNS 2023 provisions on sexual violence to discover the loopholes in its operation and jurisprudence. It then compares these mechanisms with the developed jurisprudence of the SOA 2003. The study addresses the struggle of the Indian legal system against the complicated issues of the modern world by applying the comparative legal approach. These are the jurisprudential complexities surrounding consent obtained via a false promise to marry in the new Section 69, and the exclusion of non-consensual unnatural offences that were included in the old Section 377. On the other hand, the discussion examines how the UK dealt with intoxication, mental capacity and false sexual practices. It points out the best practices and the leftover uncertainties in the case such as R v. Bree and R v. B. Findings reveal that the BNS clearly criminalizes dishonest sexual intercourse, but in reality, it is already below the international standards of human rights and constitutional morality. The paper ends with recommendations of wholesome changes in policies to seal the normative gap in Indian criminal jurisprudence. It supports the elimination of the marital rape exception, the use of entirely gender-neutral language, and the creation of an objective statutory basis of evaluating consent.
Keywords: Bharatiya Nyaya Sanhita, Sexual Offences Act 2003, Marital Rape Exception, Gender Neutrality, Statutory Consent, Rape Jurisprudence.
