Gender matters: BNS misses femicide that hides behind homicide

One of the main thrusts of the Bharatiya Nyaya Sanhita Bill, 2023 (BNS), which seeks to replace the Indian Penal Code (IPC), is to give precedence to provisions relating to the protection of women and children and to strengthen provisions penalising murder. However, the BNS overlooks the application of a gendered lens when considering provisions penalising murder.

While bringing murder into context, we are posed with broader societal questions. This requires societal consensus as to whether gender neutrality in the crime of murder is the way forward. Are we, in the name of gender neutrality, turning a blind eye to the continuum of violence against women?

The National Crime Records Bureau (NCRB) data reveals a consistent increase in cases of violence against women, rising from 3,71,503 cases registered in 2020 to 4,28,278 cases registered in 2021. While laws penalising murder may be gender-neutral, the reality is not.
The recurring question of whether female lives matter surfaces when we encounter cases of brutal murders of women, as seen in cases like Nirbhaya and Shraddha Walker. These cases act as societal wake-up calls to the otherwise concealed increase in violence against women in gruesome ways.

The invisibilized increase in gendered murders is often not reflected in the National Crime Records Bureau data. Prof Nishi Mitra vom Berg notes that this is due to the current system of collecting and classifying data related to crimes against women. Under the present system, the crime bulletin of India’s crimes against women lacks sufficient disaggregation to reflect the specific context of the crime. The context is important here to ascertain the number of women dying or being murdered as a result of gender-based violence. It is pertinent to define crime in the cultural context of India. In India, the forms include, but are not limited to, honour crimes, dowry deaths, female foeticide, infanticide, intimate and non-intimate partner violence, etc. This points us to a catena of crimes falling under the umbrella of femicide, which nevertheless fall under the broad heading of regular homicides, thereby ignoring the specific misogynist context such crimes are committed in. For example, honour killings that are motivated by gender subjugation are tried as regular homicides in the absence of legislation penalising such crimes. Similarly, rising instances of copycat murders after the Shradha Walker case, which can at best be tried as a rarest of rare cases under the prevailing system, have become regular occurrences, thereby losing the rarity of the case. In such instances, femicide as a category of murder becomes necessary.

Under the present system of classification, it is difficult to determine the exact number of women who are killed due to gender-based violence. These killings are usually reported as regular homicides, thereby leading to the invisibility of the rising instances of femicide.
The criminalization of femicide in Latin American countries such as Costa Rica and Guatemala was a result of focused advocacy by feminist organisations. Over 18 countries in the region have criminalised femicide, enacting different legal provisions for penalising intimate and non-intimate partner violence and killings.

A research study analysing the impact of legislation criminalising femicide found that in countries like Honduras and Nicaragua, where femicide rates were increasing before the enactment of a law, it hurt further perpetuation of such crimes. Thus, unambiguous legislation along with transparent and comparable data might be potential factors that reduce the rate of femicide.

What the BNS replacing the IPC could potentially do to penalise femicide would be to create a separate category of homicide known as femicide. This would entail the insertion of a category called “murder amounting to femicide” in Chapter VI relating to offences affecting the human body. This would delineate certain instances of murder of women or girls that would be penalised as femicide. The aforementioned crimes falling under the umbrella of femicide shall form the basis of these instances. This reconceptualization of the offence of murder is necessary, and female lives do matter.

(The writer is a research fellow at Vidhi Centre for Legal Policy, Karnataka)

(This is the eighth article in a DH-Vidhi Centre for Legal Policy series on the 
proposed new criminal law codes)