Codification of Criminal Law (Part 1): Four Themes in the IPC and BNS

July 1 will mark two years since the repeal of the colonial criminal codes and their replacement with their decolonised doppelgangers, making it the perfect time to talk about them. By now, it is beyond debate that the core architecture of the new laws mimics that of the old codes, so I need not spend time on rehashing the point and what it entails for a politics of decolonisation.

In a three-part series, I will discuss some themes in these three criminal codes. The themes being identifies are, as the title suggests, more interested in the idea of codification rather than the nuts and bolts of what the three codes do. So, for instance, while there is copious literature debating the merits of how the Indian Penal Code, 1860 [IPC] draws the line between murder and culpable homicide, there is comparably far lesser out there on how the IPC draws a line on criminalisation per se, and its enduring impact on the Indian legal system. I hope that gives a sense of the kind of discussion we have in store.      

This post looks at the IPC, with the next two posts addressing the Criminal Procedure Code of 1973 [Cr.P.C.] and Indian Evidence Act of 1872 — and by extension, their 2023 counterparts.

Theme 1 — Does the IPC Overcriminalise?

The Draft Penal Code for India prepared by the First Law Commission was published in 1837, on which the IPC was largely based, contained a dizzying array of crimes; both, in terms of categories—bodily offences to forgery to mischief—and classes within the categories—separate offences of simple hurt, assault, and criminal force all stemming from engaging in certain physical acts.

Being comprehensive was one of the key objectives behind the science of codification as it had emerged in the 18th and 19th Century, and if we judge the IPC by that metric, it is an obviously good effort at codification. But what about a different metric of the code's content. Did all of what the IPC render as a crime, merit criminalisation in the first place? 

The 1837 Report and its reviews by subsequent Law Commissioners, show us that there was an acknowledgment of this issue of line-drawing, especially because the IPC was not digesting the existing law but admittedly creating a new system of law. Viewed from this lens, the IPC was a politically and morally significant legislative exercise. A decision was being made by the ruling class to treat some forms of acts as warranting interference by the state, in the form of allowing prosecutions and then imposing sanctions in the form of imprisonment. 

Besides politics, there is also a question of what impact criminalisation has from a legal process perspective. In denoting some conduct a crime, it may be that there was already a recognition of that conduct as wrong or illegal. For instance, think of assault and battery. Even if it was designated a crime, there was legal recourse available to sue persons in tort and claim damages. Criminalising this conduct did not evaporate the pre-existing civil remedy but gave a new option for the same grievance. Both sets of recourse came with different aims, costs to litigate, procedural routes, burdens of proof, and outcomes. 

This is the point I want to drive home. In its framework, the IPC subsumed swathes of conduct that would also fall within the realm of private law. But because criminal law was a distinct legal process, it meant that the private law remedy continued to exist in tandem for those who wished to exercise it. Nothing was done in the Code to address this synergy between civil and criminal remedies for the same conduct, although the phenomenon was indeed acknowledged in the Draft Report of 1837 where Macaulay discussed cheating. The sense of overlap is also made clear when we look at a different source — The Draft Civil Wrongs Bill which was prepared by Frederick Pollock later on in the 19th Century (it did not come to pass). In many areas, the bill simply turned to the IPC, and reiterated that bringing a suit would not preclude criminal actions.

Understanding that the creation of the IPC as a political choice should make it obvious that it is influenced heavily by the times that one lives in, and requires periodic revisits to assess whether the choices of the 19th Century remain valid. But even jurisprudentially, the justifications offered by Macaulay in 1837 for criminalising vast swathes of purely private conduct — minor assault, battery, damage to property, insult, defamation, denying creditors, to name a few — were also a product of the times he lived in. Those choices were avidly contested back in the 19th Century, so it stands to reason that they should, if anything, be subjected to even greater scrutiny in the 21st.

Theme 2 — Widening, and not Questioning, State Authority       

Continuing with the theme of the times one lived in, comes the argument that a key purpose for the IPC was to solidify, legitimate, and maximise authority over a still-nascent dominion held by a colonial power. Understandably, the document does not spend much time fleshing out principles on which state power may be questioned or tested. 

To put it bluntly, there is no principle of criminalisation afforded within the document itself. As we saw earlier, this was a question which concerned the drafters (and reviewers), and their personal preferences about what should or should not be a crime informed the IPC. But there is no talk or discussion about codifying a set of principles to guide future legislators on how to principally go about the line-drawing exercise to identify crimes from torts. Presumably, because there could be no restraining the power of the state to unleash criminal sanctions on colonial subjects for whatever ends it saw fit.   

A logic of widening, and not questioning, state authority may make sense for a document that is being created by a young colonial power unsure of how to grapple with its increasing legislative functions. It does not make any sense for a sovereign democracy which professes to respect the idea of a culture of justification in theory and practice. Absence of any general norms on creating crimes has enabled the proliferation of an array of legislation utilising penal sanctions for purely political purposes. In failing to address this gap within the Bharatiya Nyaya Sanhita 2023 (the counterpart to the IPC), India's parliament has ensured a colonial continuity of the worst kinds.    

Theme 3 — The General and the Special Parts of Criminal Law

The proliferation of special laws without any attempt at consolidating the general law is an issue flagged throughout the course of the IPC's life after the 1970s, as more laws came to be passed creating crimes to address all kinds of social problems. In the 2005 edition of the wonderful Essays on the Indian Penal Code published by the Indian Law Institute, a chapter on reform specifically flagged this gap between the general criminal law within the IPC and the multitude of special criminal laws as a problem. 

This is an interesting theme to unravel, because we can clearly see that the start of special laws begins during colonial rule itself. A focused study may be able to point out what prompted the move to create crimes outside of the Code. From my limited, and very preliminary study, I would guess the answer was not as much considerations of substantive law, but more to do with the procedural framework. The creation of special criminal laws was, I would argue, to avoid giving those accused persons the full extent procedural guarantees that the Criminal Procedure Code would confer. Instead, these special laws prescribed their own procedure, which deviated quite substantially from the ordinary law. A good example here would be the Rowlatt Act. One might say that the same logic continues to inform special laws today. Would the UAPA, PMLA or NDPS carry the same weight without their truly draconian procedural regimes? 

If we view the proliferation of special laws as a procedural issue, then it becomes difficult to imagine how there can be any neat or proper consolidation of the general and special laws. This is where I remain skeptical of the patchy attempts at this consolidation made in the 2023 BNS, which has introduced organised crime and terrorism related offences. These offences in the BNS co-exist with the special laws with their special procedural regimes, and one wonders why any investigating agency would want to rely on them.            

Theme 4 — Punishments and Prejudices

Lastly, we come to how the IPC punishes crime. This issue is actually two issues rolled into one: the is first about judicial discretion to decide and inflict punishments, and the second about what the punishments are. The points made in the previous sections all blend in here. Given that the IPC was a document designed to consolidate and maximise state power, it did not wish to create any principles for what kind of crime may warrant imprisonment, even though there was a clear recognition by the drafters that all kinds of crime should not warrant a jail term.

In this regard, there has been some recognition of changing attitudes over time on the modes of punishment, as can be seen with the abolition of whipping and transportation as punishments in the first decade of Indian independence. But there remains little or no reflection on the scheme of unfettered judicial discretion to impose punishments and the arbitrariness that it entails. This, despite there being a telling set of passages in the 1837 Report about how judicial discretion to awarding sentences is an imperfect solution which can beget unfair outcomes.     

The BNS has addressed very little of this issue of judicial discretion as well, minimally altering the scheme of discretion present within the IPC. As for what punishments can be awarded, it has a new category of punishment — community service — which it doesn't use much. Arguably the only consistent reform on this front has been raising the amount of fines which can be imposed upon conviction. 

Concluding Remarks

These are overlapping and broad themes. One wonders what role they have played in shaping the legal system and their impact on how the system of criminal law operates even today. The absence of any guiding principles for criminalisation and levying of imprisonment means that anything, like dishonour of a cheque, can be made a crime punishable by imprisonment if the state thinks so. Or, for that matter, offences can be given terribly broad definitions to practically permit the prosecution, or persecution, of mere thought.

Then there is the issue of dockets. The exuberant coverage of purely private wrongs through the penal route gives litigants options. Many of them find the criminal process preferable, being a comparatively low cost route to civil proceedings, while at the time carrying far sterner bite with the prospect of imprisonment. This often prompts parties to settle their disputes, raising doubts as to whether the objective of the claimant was simply to use the cheapest means possible to get damages rather than to punish the defendant. 

What would have happened if the BNS shed some of this load and left parties to their own devices with civil remedies for many of the private wrongs that the IPC covered? No more assault and battery cases, no more defamation, and definitely no cheating cases where there is a contract, and you go file your tort claims before the Civil Judge. Would it help make a fairer, and more robust, criminal process? It would certainly reduce the use of criminal law for collateral purposes. 

Some things for the next review to think about, I guess.

Guest Post: The Penetration Paradigm and Inadequacies in India's Non-Penetrative Sexual Offence Law

(This is a guest post by Khushi Agarwal)

In India, sexual offences against women are broadly categorised into penetrative and non-penetrative acts. The former comes under the purview of Section 63 of the Bharatiya Nyaya Sanhita 2023 (“BNS”) dealing with rape whereas all other non-penetrative sexual acts are mostly brought under Section 74 dealing with indecent assault. Such binary classification often results in acts preceding penetration being prosecuted under Section 74 and are rarely categorised as an attempt to rape. The legal distinction between these provisions creates a disparity in the quantum of punishment awarded and calls for a deeper examination of the relevance of the penetration standard which distinguishes the two. By centring the definition of rape around penetration, does the BNS sufficiently address the gravity of other sexual offences which are non-penetrative in nature in terms of punishment? Can sexual activity be interpreted solely through the lens of penetration?

This post attempts to answer the questions posed above. To that end, I argue that the penetration standard is phallocentric in nature due to which it is problematic for deciding the severity of non-penetrative sexual offences. As a result, non-penetrative offences broadly get classified under any of the lesser offences. This argument, however, does not imply that the distinction should be abolished altogether. Its larger purpose is to show that the penetration standard is insufficient for determining the gravity of non-penetrative sexual offences.

The Penetration Standard and its Relevance in Non-Penetrative Sexual Offences

‘Grabbing the breasts of a minor girl, breaking the string of her pyjama and trying to drag her beneath a culvert would not come under the offence of rape or an attempt to rape.’ Anjale Patel v. Union of India |Diary No. 15118-2025 (Supreme Court of India – 24 March 2025).

‘Removing Girl's Innerwear, Undressing Oneself Not 'Attempt to Rape' But Indecent Assault’ Suwalal v. State of Rajasthan | S.B. Criminal Appeal No. 272/1991 (Rajasthan High Court – 9 June 2024).

If such actions do not amount to ‘attempt to rape,’ then what does? These rulings display the inclination towards the penetration test in the Indian legal system, while adjudicating over non-penetrative sexual violence. The judicial ambiguity surrounding the two offences primarily arises due to a broad classification of sexual offences as penetrative or non-penetrative in India. This raises questions about the relevance of penetration as a standard for distinction in sexual offences.

Notwithstanding anal, oral or urethral penetration, several jurisdictions, including India, refer to the vagina as the female sex organ. As a result, the penetration requirement is not fulfilled in certain acts such as those involving contact with the clitoris by the penis because of which the offender is charged under any of the lesser offences. For a woman, physical contact of her genitalia, or clitoris or sex organ(s) by the penis or any other object is a grave violation of her sexual autonomy and can be considered to be as violative as the penetration of her vagina. It constitutes a bodily invasion of a substantial privacy interest but due to the prevalence of the penetration standard, it is trivialised and not viewed as a grave offence. The idea that sexual intercourse necessarily involves some form of penetration, preferably penile, is an inherently male concept linked to male pleasure which has severe repercussions when viewed from a socio-legal perspective.

Presently, to constitute serious sexual violations means to engage in such conduct (such as penetration of vagina) which meets masculinist understandings of sexual intercourse. This implies that other sexual acts such as touching a woman's labia majoria or fondling breasts would constitute a lesser offence, though the acts are no less invasive or violative than penetration. It reflects a phallocentric bias as subjecting a victim to overtly sexual acts, penetrative or not, immensely violates the autonomy of an individual to determine who she wishes to engage in sexual interactions with and to what extent. It is here where the feminist perspective on the penetration standard gains importance and calls for a better legislation which addresses these gaps, especially when it comes to non-penetrative criminal acts.

Attempt to Rape and its conflation with Indecent Assault

It is due to insufficiency of the penetration standard that there have been overlaps in application of Section 64 r/w Section 62 BNS, dealing with attempt to rape, and Section 74 BNS. Where the actus reus of penetration is intervened before the actual commission takes place, there is a dilemma – will the antecedent acts come under the ambit of Section 64/62 or Section 74?

To answer this, it is important to understand the constituent elements of the two offences. The primary focus of Section 74 lies in “outraging the modesty of a woman” due to which questions as to which acts constitute a violation of woman’s modesty arise. In Keshab Padhan, the High Court laid out the test for application of Section 354 IPC (now Section 74 BNS) wherein it stated that culpability depends on whether a reasonable man would have thought that the act would likely outrage the modesty of a woman. However, such a broad test raises question regarding its application ranging from relatively minor offences to extremely serious incidents. It calls for altering the focus of the offence from notions of “modesty” to violation of sexual autonomy and for reorganising the provision in varying degrees of severity. “Modesty” becomes an archaic term which is unable to inculcate relatively serious offences which deeply violate a woman’s sexual autonomy.

An attempt under Section 64 or 62 BNS would refer to the intent of committing rape, combined with an act committed in furtherance of that intent which fell short of the actual commission of such offence. Often, the underlying principle for categorising acts under indecent assault and not attempts is that acts of the accused qualify under the ‘preparatory stage’. Preparation involves arranging the means essential for commission of the offence; attempt is the direct step towards the actus reus of the offence after the preparations are over. Indian courts have repeatedly held that the act(s) may not be the penultimate act to qualify as an attempt; but acts precedent which have been done with the objective of the completion of the offence also come under the scope of attempt. Hence, it is sufficient that the acts were reasonably proximate to the offence or if not prevented, would have resulted in the full consummation of the act attempted.

In Niranjan Singh, the accused undressed the victim, made her lie on the floor and proceeded towards penetration when he was caught. Applying Venkat Rao to the facts at hand, a clear case of attempt was made out — the accused’s acts had clearly gone beyond the preparatory stage and if someone had not intervened, it would lead to commission of the offence of rape, satisfying the test(s) laid out above. However, despite commission of such proximate acts, the Court ruled that since the accused had not tried to forcibly penetrate the victim, (which would otherwise have been the penultimate act for rape) ingredients of Section 376 IPC (now Section 64 BNS) were lacking and thus, it was not an attempt. This highlights an inconsistent stance and the courts’ inclination towards the penultimate act (i.e. penetration) test while determining culpability for an attempt to rape. It underlines the ambiguity surrounding an attempt to rape: Should an attempt to rape necessarily centre around an attempt to penetrate? If it is penetration, the slightest penetration would amount to rape and not attempt, if not then it is mostly brought under Section 354 IPC (Section 74 BNS). The court's reliance on penetration as the defining factor effectively downplays severity of near-identical acts preceding penetration in cases of both rape and indecent assault. Right to bodily autonomy is violated regardless of penetration due to which penetration as the sole defining factor for severity is insufficient. Thus, centring attempts around penetration leads to a grey area whereby courts are unclear about acts which sufficiently convey an attempt to penetrate to bring a charge under Section 376/511 IPC.

Case in point is Tarkeshwar Sahu, where the accused had taken a minor to his gumti for committing illicit sexual intercourse but had failed in the attempt because of the alarm raised by the victim. The Supreme Court decided that since the accused had not undressed himself or the victim, his acts came under the preparation stage whereas in Niranjan Singh, the accused had done so yet his acts came under the ambit of preparation and not attempt. Such contradictions signify the egregious approach taken by courts when it comes to non-penetrative sexual acts. The accused’s attempt to penetrate becomes the sole determining factor for distinguishing the two. An attempt to penetrate becomes an attempt to rape, thereby overlooking other aspects of the crime. Due to a high standard of penetration, victims are often unable to discharge the high burden of proof which results in comparatively minor consequences for severe offences. These cases are mere instances in a broad trend of troubling leniency in cases of non-penetrative sexual offences.

Conclusion

Therefore, reliance on penetration as a decisive factor creates ambiguity in determining the severity of non-penetrative sexual acts, often leading to lenient punishments for serious offences which would otherwise amount to attempt. This ambiguity not only undermines the victim's pursuit of justice but also creates loopholes for offenders to evade harsher consequences. From a victim’s point of view, penetration may not be the essence of sexual violence. While penetration is also harmful, it should not be the only defining criteria for imposing a harsher punishment and the standard should be in line with the severity of the accused’s actions. The sharp distinction between penetrative and non-penetrative offences overlooks the severity of violations of sexual autonomy and highlights a masculine outlook towards sexual offences which is inadequate in addressing trauma faced by victims. The law in its present form fails to acknowledge the gravity of non-penetrative acts of sexual violence and abuse. It calls for better understanding of sexual violence to not term actions under Section 62/64 BNS to be constituting violations of Section 74 BNS. This would ensure a fairer and a more correct application of the law while better addressing the gravity of non-penetrative sexual crimes.

Guest Post: Criminal Law and Linguistic Majoritarianism

(This is a guest post by Bhushan Raut)

India is home to over 22 constitutionally recognised languages and hundred other dialects. The ability to co-exist in differences is not just a cultural imperative rather a constitutional mandate. The last few months have witnessed a rise in linguistic discrimination especially in the states of Karnataka and Maharashtra. Recently a video surfaced where an SBI employee was harassed by a local Kannada speaker for not talking to him in Kannada. Similar incidents have surfaced in Maharashtra where a native Marathi speaker was seen forcing a non-Marathi speaker to talk in Marathi and questioning their legitimacy to inhabit the state without the knowledge of the native language. Multiple incidences on such lines have surfaced over social media. Such linguistic majoritarianism leaves a deep and unsettling scar on the foundational ideas of the Indian Constitution, particularly pluralism, equality, and unity in diversity.

This article examines the intersection of constitutional and criminal law in addressing linguistic discrimination and coercion in India. While the Constitution lays down foundational rights—such as the freedom of speech, expression, movement, and residence—it is the criminal law that enforces these guarantees when they are threatened or violated. In particular, this piece focuses on how the Bhartiya Nyaya Sanhita 2023 (BNS) penalizes acts of linguistic harassment, intimidation, and the promotion of enmity on the basis of language. Can a State or its people lawfully condition a citizen’s right to reside or work on linguistic conformity? What specific offences under the BNS apply when individuals attempt to enforce such conformity through threats or public hostility? And what remedies exist to protect linguistic freedom and preserve public harmony? These are the key questions this article explores.

Language and Identity in Indian Constitutional Framework

As per the Constitution of India, it does not have any National Language. Although under Article 343 read with the Official Languages Act, 1963 it does provide for Hindi and English as the official languages of the Union. For States, under Article 345 the state legislatures can adopt or use any one or more as official languages of the State for ‘official purposes of the State’ which means it be imposed upon individuals in private or social spheres. This distinction allows us to carve out two spheres for languages. First is the Official or Public-Facing Sphere which includes government offices, public sector undertakings (PSUs) like banks, and other institutions that provide public services. In these contexts, it is reasonable—if not essential—that public-facing employees be conversant in the state’s official language(s) to effectively serve local populations. The obligation here lies with the state to ensure accessibility and communication in the official language for the benefit of its citizens. The second sphere is the Private or Personal Sphere which includes individual daily life, private interactions, and non-governmental spaces where people interact socially or commercially. Here, knowledge of the state’s official language is not obligatory. The Constitution does not—and cannot—mandate linguistic conformity in personal spaces. To do so would violate fundamental rights as we will see in the next section.

Violation of Constitutional Rights

Coming to the rights of the individual citizens, Article 19(1)(a) provides freedom of speech and expression to every citizen. It is not confined to any particular language, be it the 22 languages in the Eighth Schedule to the Constitution or any official language. The freedom of speech and expression can be restricted by the State under article 19(2) on eight grounds which are security of the state, friendly relations with foreign states, defamation, incitement to an offence, public order, decency or morality, contempt of Court and sovereignty and integrity of India.

Moreover, there is a negative right i.e. the right not to be compelled to speak in a particular language. The US Supreme court in West Virgina Board of Education v. Barnette held that compelled speech is just as much a violation of free speech as prevented speech. Similarly, in Bijoe Immanuel v. State of Kerala the Supreme Court of India held that not being forced to sing the national anthem was protected under Article 19(1)(a). Therefore, let alone private individuals, even the State cannot impose conditions requiring the use of a specific language in personal or private spaces.

Apart from the freedom of speech and expression, Article 19(1)(d) and (e) guarantees every citizen a right to move freely, reside and settle in any part of India. The only restrictions the State can impose are identified under Article 19(5) which include the “interest of general public” or “protection of the interest of any scheduled tribe.” A citizen does not need a certificate of proficiency of the local language to move freely or reside in part of the country. Therefore any coercion to demand that persons must speak a regional language to freely reside in an area is a clear infringement of the fundamental rights guaranteed under Article 19(1)(d) and (e).

Article 29(1) explicitly guarantees the right of any section of citizens to conserve their distinct language, script, or culture. The use of ‘conserve’ implies not only the freedom to preserve and practice one’s linguistic identity but also a corresponding freedom from being compelled to abandon or suppress it. Therefore, any act—whether by the State or by private individuals—that seeks to forcibly impose a dominant regional language upon individuals who do not natively speak it constitutes a violation of the spirit and text of Article 29(1).

In addition to this it is the fundamental duty of every citizen under Article 51(e) “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities…”

Criminal Remedies against Linguistic Harassment

This brings us to the next question – what remedies does a citizen have against such linguistic harassment? There is arguably a positive obligation on the State to prevent private persons from violating fundamental rights through coercion. It may choose to deliver upon this obligation in a multitude of hitherto undecided ways. But while it does so, one avenue for state-based action already exists in the form of India’s criminal law. While the constitutional guarantees establish a right to linguistic freedom, the criminal law that secures their protection. And the harms that are visited by coercion necessarily lead us into the field of criminal law.

Under the BNS a series of provisions directly address the acts of linguistic harassment, coercion and criminal intimidation which are discussed below. Section 196 BNS, a person who promotes enmity between different groups on grounds of language and doing acts prejudicial to the maintenance of harmony is punished with an imprisonment of up to three years, or with fine or with both. The offence is cognizable, non-bailable and non-compoundable. Section 196 is analogous to Section 153-A of the Indian Penal Code 1860 (IPC), but it explicitly extends to acts committed through electronic communication, thereby including offensive social media posts, viral videos, or messages that attempt to stir linguistic discord. For an offence under Section 196 two essential ingredients must be established. First, is the presence of two groups or communities [See, Bilal Ahmed Kaloo v. State of AP]. Second, prosecution must show that the accused acted with a deliberate intention to promote enmity or disturb public peace and it was not a careless or incident remark [See, Trustees of Safdar Hashmi Memorial Trust v. Govt of NCT Delhi; Balwant Singh v. State of Punjab]. In addition to this, the Supreme Court held in Azizul Haq Kausar Naquvi and Anr. v. State that criminality is not attached to words used rather to the manner in which they are used. It further held that “If the words spoken or written are couched in temperate, dignified, and mild language, and do not have the tendency to: insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow.” The standard for assessing impact is that of a reasonable, strong-minded, firm, and courageous person, not that of one with weak or overly sensitive disposition, nor someone who perceives hostility in every dissenting view. The “reasonable person” test was affirmed in Ramesh Chotalal Dalal v. UOI, wherein the Court approved observations in Bhagwati Charan Shukla v. Provincial Government, likened to the well-established English law standard of “the man on the Clapham omnibus.” In addition to Section 196, Section 353(2) of BNS—earlier 505(2) of IPC—makes it a crime to make, publish or circulate any statement including electronic means which is likely to create or promote feelings of enmity hatred or ill will between different linguistic groups.

In the recent past, incidents in Maharashtra and Karnataka vividly illustrated behaviour that fits within the scope of Sections 196 and 353 (2) of the BNS. For example, a video went viral where a Marathi customer threatened a non-Marathi shopkeeper to learn Marathi and warned that “If you don’t learn Marathi, I’ll close your shop in two weeks.” Then in another instance a Kannada speaking bus conductor was assaulted in Belagavi as he couldn’t speak to a passenger in Marathi. This linguistic chauvinism forced suspension of interstate bus services between Maharashtra and Karnataka. In another incident a video went viral of a heated argument between a man and an autorickshaw driver where the commuter was aggressively insisting that an autorickshaw driver converse in Hindi rather than Kannada.

There are two different groups: on one side are the native language speakers (Marathi speakers in Maharashtra, Kannada speakers in Karnataka) who assert a regional linguistic identity, and on the other are the migrant or non-native language speakers (such as Hindi-speaking or non-Kannada-speaking individuals). The incidents reflect an explicit ‘us versus them’ narrative based on language difference—a textbook case of inter-group division. Secondly, the behaviour of the aggressors leaves little doubt about their intent. A “reasonable man” can clearly identify the threatening nature of their words—such as demanding that non-natives “speak Marathi or leave” or warning that a shop “will be shut down if you don’t learn the local language”—goes far beyond casual or incidental remarks. The anger, coercion, and public humiliation evident in these threats strongly suggest a deliberate design to subordinate or expel those who do not conform linguistically, fostering hostility between the two groups. Thirdly, the manner in which these threats are delivered amplifies the gravity of the issue. These are not private disagreements or isolated exchanges; rather, they occur in public and commercial spaces and are made in an aggressive and demeaning manner, belittling a non-native speaker before onlookers and underscoring a deliberate attempt to disturb societal harmony. In most of the cases the aggressors themselves filmed confrontations and shared them on social media, amplifying the message of exclusion and hostility beyond the immediate scene. Importantly, liability under this provision extends not just to the original offenders but also to those who forward or circulate such content, as they too contribute to promoting enmity between linguistic groups and risking public disorder.

Conclusion

These incidents of linguistic coercion are not just random isolated events, they represent a deeper problem of intolerance where language is being used as a weapon to shame, threaten and exclude. There is a crucial difference between celebrating and promoting language—which is every community’s right—and bullying or intimidating others for not speaking it, which is not only socially damaging but criminal. To conclude, Language, like culture, is not meant to divide but to connect. We don’t need a single tongue to be united — we need mutual respect.

Guest Post: Love, Lies and Section 69 of the BNS

[This is a guest post by Sarthak Gupta and Priyam Agarwal]

The Bharatiya Nyaya Sanhita (BNS), 2023 was introduced by Parliament to replace the Indian Penal Code (IPC) that governed criminal jurisprudence for over 160 years. This reform introduces several new provisions, among which Section 69—addressing sexual intercourse obtained through deceitful means—has emerged as a particularly contentious provision. Section 69 seeks to codify and expand legal protections against sexual exploitation through false promises. However, its inclusion has sparked significant academic & legal discourse, with scholars critically examining its potential implications considering its language (calling it shamefully misogynistic), the intention behind its introduction (calling it a propertification of women's bodies), the potential for its misapplication (calling it a perfect recipe for misuse), and over-criminalisation of consensual sexual relations (criminalization of deceptive sex per se). 

In this post, the authors aim to break down Section 69 of the BNS by looking closely at its legal genesis, and possible challenges in interpretation. By critically analysing the provision's language, intent, and potential practical applications, the authors aim to contend that the provision represents an unnecessary and potentially harmful legal intervention that redundantly criminalises complex interpersonal relationships, risks over-criminalisation of consensual sexual interactions, and fails to provide clear interpretative guidelines for distinguishing between genuine changes in relationship dynamics and sexual deception.

The Judicial Genesis of "False Promise to Marry" as a Criminal Offence
The offence of ‘false promise of marriage’ or as commonly termed ‘sex by deception’ was not stipulated in any of the provisions of the IPC, rather it was created by the Indian Courts through their interpretation of Section 375 IPC (Section 63 of the BNS). Section 375 defines rape and outlines the conditions under which a sexual act is considered an act, emphasising the lack of consent as a central element. The term ‘consent’ is not defined under the IPC, however, Section 90 of IPC defines ‘consent’ in negative terms as "a consent is not such a consent as it intended by any section of this Code if the consent is given by a person under fear of injury", or a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.” 

The first case of false promise of marriage before the Supreme Court was Uday v. State of Karnataka (2003). In this case, SC acquitted the accused based on the reasoning that the prosecutrix, a mature college student, consented to sexual intercourse with the accused out of her own free will. The Court found that she was fully aware of the consequences of her actions and her consent was not based on a misconception of fact. SC observed the essential ingredients of  Section 90 IPC as follows:

• Consent must be proven to have been given under a misconception of fact; and
• It must be demonstrated that the accused knowingly obtained consent through such misconception.

Subsequent SC judgments added multiple layers to the structure of the above principles. Yedla Srinivasa Rao v. State of A.P. (2006), held that obtaining sexual consent through a deliberate false promise of marriage constitutes rape. Similarly, in State of U.P. v. Naushad (2013), the Court convicted an accused who obtained sexual consent by falsely assuring marriage, subsequently refusing to marry after the woman became pregnant. In Pramod Suryabhan Pawar v. State of Maharashtra (2019), SC crystallised the legal standard, stipulating that, first, the consent must involve active, reasoned deliberation. Second, the marriage promise must be demonstrably false and lastly, the promise must directly influence the woman's decision to engage in sexual relations The SC in Pramod Suryabhan consistently distinguished between two critical concepts: a "false promise to marry" and a "mere breach of promise". A false promise involves intentional deceit at the time of making the promise, whereas a breach of promise might result from genuine intentions thwarted by unforeseen circumstances. In Deepak Gulati v. State of Haryana (2013), emphasised that conviction requires proving the accused's mala fide intentions at the promise's inception. Unforeseen circumstances preventing marriage do not automatically constitute false promise. Dhruvaram Murlidhar Sonar v. State of Maharashtra (2019) further refined this approach, acknowledging that not all cases of unfulfilled marriage promises constitute rape, particularly when genuine affection exists. 

Thus, despite being a judicial creation and not being explicitly stated in any provision of IPC, the offence of "sexual intercourse based on the false promise of marriage", was duly covered through judicial interpretation of Sections 375 and Section 90 IPC, and such an act of sexual intercourse had been treated as ‘rape’. Through a series of judgments, courts established specific criteria and conditions for proving this offence. These include:

• The accused must have had no intention of marrying the victim from the very beginning
• The false promise must have been the primary reason for the victim's consent
• The accused must have known or had reason to believe that the consent was given based on a false promise.
• The consent must have been obtained through intentional deception, not merely a change of mind or circumstances.

Thus, Court has consistently emphasised the distinction between a genuinely false promise and a breach of promise due to unforeseen circumstances. This approach highlights the importance of the accused's intent at the time of making the promise, rather than simply focusing on the outcome. The evolution of this jurisprudence has created a framework that allows for the prosecution of cases where consent is vitiated by deception, while also providing safeguards against misuse of the law in cases of genuine changes of heart or circumstance. 

Old Wine in a New Bottle?

While the preceding judicial precedents developed a framework for understanding consent in cases of sexual interactions involving deceptive promises, the legislative intent behind Section 69 is more complex and multifaceted than a simple restatement of judicial practice. The provision potentially aims to address broader scenarios of sexual deception beyond the specific jurisprudential development around marriage promises. It might be a political attempt to create a distinct legal category that encompasses various forms of sexual interactions obtained through fraudulent means, which extend beyond the narrow judicial interpretation focused on marriage promises. The language "sexual intercourse not amounting to rape" suggests a deliberate legislative choice to create a separate legal classification. Without access to the precise legislative debates (which are not out in public discourse) and drafting notes, any interpretation remains speculative. Thus, the assumption of redundancy or mere codification requires a rigorous examination of the legislative intent, the specific language of the provision, and its potential broader applicability beyond existing judicial precedents.

The bare reading of Section 69 BNS reads that any individual who engages in sexual intercourse with a woman by using deceitful means, including making a false promise of employment, promotion, or marriage with no intention of fulfilling it, where such intercourse does not constitute rape, is an offence which shall be punished with imprisonment for up to ten years and shall be liable to fine. The primary issue in Section 69 of the BNS concerns establishing, identifying, and proving the intention behind false promises of marriage, employment, or promotion. This provision targets ‘deceitful conduct’ where an individual uses false assurances to persuade another person to engage in sexual intercourse. This requires not only proving that a promise was made but also that it was intended to be ‘deceptive’ from the outset. Such a determination is inherently subjective, as it involves analyzing the accused's mental state and intent at the time the promise was made. 

The codification of false promise to marry in Section 69 of the BNS represents a concerning example of how judicial doctrines when transformed into statutory offences without careful consideration, can create overbroad and potentially harmful law. First, what worked as a flexible judicial doctrine has been ossified into an inflexible statutory offence. When courts developed the "false promise of marriage" doctrine under Sections 375 and 90 of the IPC, they could exercise discretion, examine contextual factors, and develop nuanced case-by-case applications. Courts could consider the specific circumstances, the nature of the relationship, the parties' backgrounds, and various other factors to determine whether consent was truly vitiated by deception. This judicial flexibility was crucial in distinguishing between malicious deception and genuine changes of heart.

Second, Section 69 of the BNS has extracted this doctrine from its original context within rape law (where it was part of a broader analysis of consent and misconception) and created a standalone offence. This decontextualisation is problematic because it loses the careful balancing that courts had developed between protecting victims of genuine deception while avoiding criminalisation of all broken promises of marriage. The provision lacks the sophisticated safeguards that courts have developed over time. For instance, in cases like Deepak Gulati, (2013) and Dhruvaram Murlidhar Sonar,(2019), SC had carefully distinguished between mere breaches of promise and false promises made with initial deceptive intent. The BNS provision, however, lacks these crucial distinctions, potentially criminalising a much broader range of conduct than the courts ever intended. Lastly, the BNS provision fails to incorporate the evolving understanding of consent, autonomy, and relationships that courts had begun to develop. Modern judicial decisions have started to move away from paternalistic assumptions about women's sexuality and recognise the complexity of contemporary relationships. The BNS provision, however, seems to revert to a more simplified and potentially regressive understanding.

While courts could exercise discretion to prevent misuse of the doctrine, a statutory offence creates a much more rigid framework that could be weaponized in cases of relationship breakdowns. This is particularly concerning given India's social context, where relationships outside marriage often face social stigma (See, the Uttarakhand UCC) and where criminal law can be used as a tool of social control. The fundamental issue is that the BNS has attempted to convert a judicial doctrine - which worked precisely because of its flexibility and context sensitivity - into a rigid statutory offence without adequately considering the implications of this transformation. What served as a useful tool for courts to address genuine cases of sexual exploitation through deception now risks becoming an overbroad criminal provision that could criminalise a wide range of consensual relationships that end in broken promises. The codification creates a dangerous catch-all framework. 

Arguendo, in a relationship between X (male) and Y (female) where they engage in consensual sexual intercourse. X expresses feelings for Y and makes informal statements about possibly marrying her in the future, but no explicit promise is made. Over time, circumstances change, leading to a breakup. Subsequently, Y filed a complaint against X under Section 69 of the BNS, alleging that her consent to sexual intercourse was obtained through ‘deceitful means’ based on X's ambiguous statements about marriage. The above situation raises the key question of whether X's initial intention was genuine or deceitful. The rationale from Deepak Gulati, (2013) and Dhruvaram Murlidhar Sonar,(2019), emphasises that for a conviction under Section 63 (formerly Section 375 IPC), it must be proven that X had ‘no real’ intention to marry from the outset. Given that X's intentions were sincere at the beginning, any legal action would likely be viewed as a breach of promise rather than an act of ‘deceit’. However, the vagueness surrounding the meaning of 'deceitful' intentions complicates matters, as neither the courts nor the legislative have provided clear guidelines on how to assess such intent, leaving room for subjective interpretation. In Uday v. State of Karnataka & Deepak Gulati, (2013), the SC emphasised that mere expressions of future intent do not constitute false promises unless there is clear evidence that the accused never intended to fulfil the promise. Similarly, the Court has held that ‘consent’ must be evaluated based on the context and intentions at the time of the act. If in the above hypothesis, Y's consent stemmed from genuine affection rather than reliance on a clear promise, it becomes challenging to argue that her consent was vitiated by deception. 

Section 28 BNS (earlier Section 90 IPC) invalidates ‘consent’ obtained through misconception of fact, such as false promises of marriage or employment inducements. While Section 69 introduces the concept of "sexual intercourse not amounting to rape," a careful reading reveals its potential redundancy. When consent is vitiated under Section 28, the sexual interaction inherently falls within the definition of ‘rape’. The prosecutrix's consent, being legally compromised due to deception, means the act should be prosecuted for the crime of rape under Section 63 rather than Section 69. Hence, the overlap between Sections 63 and 69 raises questions about the necessity of the latter, as situations involving deception are already covered under existing provisions.  The subjective nature of personal relationships complicates matters further. Y's feelings and motivations for consenting to sexual intercourse may not have been solely based on X's statements but rather on mutual affection and desire. Thus, proving that her consent was vitiated by a false promise becomes challenging. 

The absence of explicit promises creates a precarious situation for X, who may find himself facing serious allegations despite the consensual nature of their relationship. The above scenario highlights broader concerns regarding Section 69 of the BNS, which aims to address sexual intercourse obtained through deceitful means. However, its application can lead to inconsistencies and potential misuse, as individuals may retrospectively claim that their consent was based on misleading promises after a relationship ends. The law's vague definitions surrounding 'deceitful' intentions further complicate its enforcement, risking arbitrary interpretations that could unfairly penalise individuals like X.

Notes from foreign fields

Laws addressing sexual offences based on false promises of marriage vary significantly across jurisdictions, reflecting different cultural, social, and legal contexts, with significant variations between common law and European jurisdictions. While some legal systems advocate for comprehensive criminalisation of any deceptive sexual interaction as a violation of sexual autonomy, most scholars and jurisdictions recognise the need for nuanced differentiation. Moreover, the term ‘deceitful’ from the comparative perspective has been defined through varied acts which inter alia include, a person lying to obtain sex [Israel v. Alkobi, (Israel)]; biological sex [McNally v. R (UK)]; using contraception [Julian Assange v. Swedish Prosecution Authority (UK)]; having sexually transmitted diseases [R. v. Cuerrier, (Canada)], removing a condom during sex [R(F) v. DPP, (UK)]; false promise to withdraw before ejaculation voids consent [R. v. Lawrence, (UK)]; false promise to marriage [Parker v. Bruner, (USA)]; false facial features like moustache [R. v. Cuerrier, (Canada)]; and misleading advertisement of wealth or social status [People v. Evans (USA)]. 

The conventional criminal law framework distinguishes between two categories of sexual deception: fraud in factum (deception about the very nature of the sexual act itself, such as medical manipulation or spousal impersonation) and fraud in inducement (deception that induces consent, like false marriage promises). In European Countries, like Germany and Spain, consensual sexual interactions obtained through deception between mentally competent adults are not typically criminalised, with Italy specifically limiting criminal sanctions to cases of direct personal impersonation. Common law countries like Canada, England, and the United States tend to criminalise acts falling under fraud in factum, while being more hesitant to penalise fraud in inducement. In the United States, the Tennessee Criminal Code under Section 39-13-503(a)(4) (2005), has been redefined to include “sexual penetration accomplished by fraud.” Alabama also identified the offence of Sexual Misconduct which applies to men only, who engage in sexual intercourse with a woman "with her consent where consent was obtained by the use of any fraud or artifice". California, Idaho, and many other states have similar provisions. However, it must be noted that fraud in the factum occurs when the Defendant’s deception causes the victim to believe that she is consenting to an act that is not sexual intercourse [See, Prof. Blum here]. Similarly, in the UK, the Sexual Offences Act 2003 criminalises sexual offences extending impersonation from impersonating the woman’s legal husband to "impersonating a person known personally to the complainant". 

In Canada, Section 265(3) of the Criminal Code includes provisions against sexual assault and recognizes that consent must be informed and voluntary. In R v. Crangle, (2010), the Canadian Court convicted the accused of sexual assault after impersonating his twin brother and sleeping with his brother’s girlfriend. In Australia, Section 218(1)(a) and (4) of the Criminal Code states that any person by coercion procures another person to engage in a sexual act, either in Queensland or elsewhere, wherein the coercion means intimidation or threats of any kind; or assaulting a person; or damaging the property of a person, or making false representations or using false pretense or fraudulent means.  In the case of R. v. McKelvey [1914], the Australian Court found the accused guilty of sexual assault on the fact that he obtained sex by lying about marrying the victim.

Similarly, Section 376H of the Singapore Penal Code, any "procurement of sexual activity by deception or false representation (where there is penetration): imprisonment of up to 10 years or fine or caning, or any combination of such punishments." Section 346(a)(1) of the Israel Penal Law states that "if a person had intercourse with a minor who has reached age 14 but has not yet reached age 16 and who is not married to him, or if a person has intercourse with a minor who has reached age 16, but has not yet reached age 18, by exploiting a relationship of dependence, authority, education or supervision, or by a false promise of marriage, then he is liable to five years imprisonment."

Thus, the common law countries' jurisdictions adopt a markedly different approach to addressing sexual deception, preferring a more nuanced and contextual legal strategy rather than creating a specific, standalone provision for sexual assault based on false marriage promises. Instead of establishing a discrete legal category for false marriage promise-induced sexual interactions, these jurisdictions typically address such scenarios through broader interpretive frameworks of sexual assault, consent, and fraud. This approach allows for more flexible judicial interpretation, enabling courts to assess the specific circumstances, intent, and nature of deception on a case-by-case basis. By embedding such considerations within existing legal doctrines rather than creating a separate statutory provision, common law systems (discussed above) maintain a more dynamic and context-sensitive approach to understanding and adjudicating complex sexual interactions involving deception.

Conclusion

Section 69 BNS is not just a mere codification of existing judicial interpretations, the language of the provision introduces an ambiguous concept of ‘deceitful means’ without providing clear interpretative guidelines. This creates a significant risk of arbitrary legal application, potentially criminalizing the inherent complexities of interpersonal relationships where intentions may have genuinely evolved or where consent was not solely predicated on a specific promise.  Section 69 complexity reminds us of the legal intricacies observed where constitutional privileges created unintended loopholes in accountability. In the case of P.V. Narasimha Rao v. State, the Court recognised that Members of Parliament enjoy certain privileges under Article 105 of the Constitution providing a shield to them from any legal consequences when acting within their parliamentary duties. However, an important distinction was made: those who accepted bribes but did not cast votes in Parliament were deemed liable for prosecution, while those who did vote were granted immunity. This distinction led to an unintended consequence, where law could be exploited, allowing some individuals to evade accountability while others faced legal repercussions. In March 2024, the SC addressed this issue by overturning the Narasimha Rao Rule, emphasising that such privileges should not shield individuals from criminal liability when their actions fall outside the scope of parliamentary functions. In Section 69, we see a parallel risk—a provision ostensibly meant to protect against sexual deception might paradoxically become a mechanism for retrospective legal manipulation of consensual relationships, much like how parliamentary privilege was historically misused to shield certain actions from genuine legal scrutiny.