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Women can face gang rape charge under section 70 BNS: Delhi HC

By CAShorts DeskPublished Source: Hindustan Times; Bharatiya Nyaya Sanhita, 2023 (Gazette text); POCSO Act, 2012 (India Code).

Women can face gang rape charge under section 70 BNS: Delhi HC
Illustration (AI-generated)

The Delhi High Court has held that "one or more persons constituting a group" in section 70 of the Bharatiya Nyaya Sanhita, 2023, the gang rape provision, is gender-neutral. A woman acting in furtherance of a common intention can be charged with gang rape. A woman alone cannot, because section 63 defines rape as an act by a man.

Syllabus: Prelims · Polity & Governance; GS1 · Women, Population & Urbanisation; GS2 · Welfare of Vulnerable Sections

Why this matters for UPSC

GS2 polity and GS1 women's issues: Prelims can ask what sections 63, 70 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 provide; Mains, whether India's rape law should be gender-neutral.

Why it matters

For a girl or woman assaulted by a group, the person who arranged the crime, held her down or threatened her into it is often not the one who committed the act. If that person is a woman, she could have argued that the gang rape law could never apply to her. This ruling closes that gap in Delhi: anyone who shares the plan can face the same severe punishment as the group. It also keeps a line in place, since a woman acting alone still cannot be charged with rape. The larger debate is whether India's sexual offence laws should protect and punish without regard to gender.

Prelims pointers

  • Section 70(1) BNS: gang rape carries a minimum of 20 years' rigorous imprisonment, extendable to whole-life imprisonment, with fine.
  • Section 70(2) BNS: when the victim is under 18, the death penalty becomes available as an alternative.
  • Victim compensation: under the provisos to section 70, the fine must be just and reasonable to meet medical and rehabilitation costs.
  • Repeat offenders (section 71 BNS): a second conviction under section 64, 65, 66 or 70 draws death or imprisonment for the convict's remaining days.
  • Section 72 BNS: printing or publishing anything that makes known the identity of a victim of sections 64 to 71 is an offence.
  • Section 2(10) BNS: the pronoun "he" is used of any person, whether male, female or transgender.
  • Section 358 BNS repealed the Indian Penal Code; the Bharatiya Nyaya Sanhita, 2023 was published in the Gazette on 25 December 2023.
  • POCSO Act, 2012: a child is anyone under 18; Special Courts are designated by the State Government with the High Court Chief Justice's consultation.

Practise a UPSC-style question

With reference to the offence of gang rape under section 70 of the Bharatiya Nyaya Sanhita, 2023, consider the following statements:

1. Section 70(1) prescribes a minimum punishment of ten years of rigorous imprisonment for gang rape.

2. Where the woman raped by a group is under eighteen, section 70(2) prescribes imprisonment for the rest of natural life, or death.

Which of the statements given above is/are correct?

  1. (a) 1 only
  2. (b) 2 only
  3. (c) Both 1 and 2
  4. (d) Neither 1 nor 2
Show the answer

Answer: (b) 2 only

Answer: (b) 2 only. Only the statement on the punishment for gang rape of a girl under eighteen is right.

Statement 1: incorrect. Section 70(1) of the Bharatiya Nyaya Sanhita, 2023 sets a minimum of twenty years of rigorous imprisonment, extendable to life for the remainder of natural life, with fine.

Statement 2: correct. Section 70(2) punishes gang rape of a woman under eighteen with life imprisonment for the remainder of natural life and fine, or with death.

Eliminate: statement 2 is the higher punishment for victims under eighteen, so it is correct. Out: (a), (d).

Eliminate: statement 1 gives ten years, but the floor is twenty years. Out: (c).

Trap: Near-miss figure. Ten years is the floor for aggravated rape under section 64(2); the question swaps it in for the twenty-year floor of gang rape.

Remember: Gang rape (section 70 BNS): at least 20 years; victim under 18: life for the rest of natural life, or death.

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