Gender-neutral provision to criminalise adultery among recommendations by panel on new criminal laws

New Delhi: A gender neutral provision to criminalise adultery to protect the institution of marriage and reworking a provision to prevent people from escaping punishment by claiming mood swings as mental illness are among a slew of recommendations made by a Parliamentary Standing Committee that examined the new codes.

The Parliamentary Standing Committee on Home Affairs headed by BJP MP Brijlal submitted the reports on The Bharatiya Nyaya Samhita, The Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Bill, which will replace the Indian Penal Code, Criminal Procedure Code and The Evidence Act.

In its report on the Bharatiya Nyaya Samhita, 2023, the committee recommended the reintroduction of Section 377 of the IPC, which criminalises non-consensual carnal intercourse and acts of bestiality. While consensual homosexual activity was decriminalised, non-consensual activities were retained in the statutes.

The panel also wanted the reinstatement of a provision to criminalise adultery but make it gender-neutral. The Supreme Court had held the adultery law as archaic, arbitrary and paternalistic and infringed upon women’s autonomy, dignity and privacy while finding fault with the way women were reduced to be a property of her husband.

“...the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity. For the sake of protecting the institution of marriage, this section should be retained…by making it gender neutral,” it said. In the earlier provision, only men were penalised.

The panel also wanted the government to rephrase the word mental illness as a defence of an accused to unsound mind. It argued that medical insanity cannot be a ground for acquittal and legal insanity is required to be proved. 

“However, the term mental illness is too wide in its import in comparison to unsound mind, as it appears to include even mood swings or voluntary intoxication within its ambit….such a frivolous claim if recognised as valid defence, will spell doom for the prosecution as all defence will be claimed under this provision…the accused person can simply show that he was under the influence of alcohol or drugs during the time of the commission of crime and that he cannot be prosecuted…” it added.

While appreciating the introduction of community service, the committee wanted the government to clearly define the term.

Examining The Bharatiya Nagarik Suraksha Sanhita, 2023, the panel appreciated the introduction of provision for attachment of assets of proclaimed offenders based abroad.

Commending the initiative to provide for trial via video-conferencing, it warned that there could be opportunities for manipulation and misuse. The adoption of electronic means for communication and trials should proceed only after the establishment of robust safeguards to ensure secure usage and authentication of electronically available data.

It also opposed the handcuffing of economic offenders, as it encompasses a wide range of offences, ranging from petty to serious, and therefore, it may not be suitable for blanket application of handcuffing in all cases falling under this category.