We live in a postmodern society, where apparently the perception of truth is distorted as Steve Tesich refers to it as the [1]'post truth society'. Law today has a close affinity towards the perceptions of the contemporary society. As sociologists argue, for a law to be widely accepted it has to be in consonance, with the beliefs, and with what the society perceives as the eternal justice system.

Law is henceforth a dynamic concept that has to adapt itself to the changing belief system of the society. It is indispensable, for a sound legal system to ensure that their laws are built in such a way so as to facilitate the symmetry of modern ideologies and order. Any altercation in relation to this would result in controversies. As far as controversies are concerned, one such thing that has recently been a topic of debate, within the legal luminaries is "Section 69 of BNS".

This Section is the part of the newly amended Act Bharatiya Nyaya Sanhita which is meant to replace the archaic structure of the Indian Penal Code and update it according to the contemporary needs. This Section specifically deals with criminalizing sexual intercourse obtained through deceitful means. Here the term deceitful means emphasizes the making of false promise to marriage, concealing one's own identity and making of false promise of employment or promotion.

The research that is unfurled in this article had its thrust, from a challenge before the high court of Kerala[2]. The main point that is put to introspection here is the constitutional validity of this section. Many adversaries argue that, this Section by explicitly extending protection to women, has proved to be misandristic, as this unprecedented assumption is pejorative to men and leads to a question, 'Are only women prone to fall for deceit?', 'Are only men the perpetrator?'.

Like [3]John Locke said, laws should be egalitarian, in nature but extending this protection only to women itself defeats the whole purpose of Article 14 of the Indian Constitution that is, right to equality. That apart, some argue that, it is too ambiguous that it might be misused and even some argue that, it is still backed up by traditional norms and practices rather than resonating with modern ideologies. Rising queries in relation to this Section, indicates the immediate need to address the dilemma, whether laws are actually developed or is just in an advance stage of decay.

In the contemporary society, even though not binding by the traditional norms it is the matter of fact that live- in relationships have become more and prominent especially in urban areas. The western influence has rendered in distorted relationships and today a man and a woman in a long-term relationship who despite knowing the uncertainty, of them ending up together, might or might not indulge in sexual intercourse, in such a case, this section instigates a ready weapon in hands of woman to be used against men, as means of reprisal, when the relationship comes to an end.

This is one big concern that has to be addressed. As far as the constitutional validity is concerned, it has to comply with the test of reasonable classification which has been laid down in the case of [4]State of West Bengal v. Anwar Ali.

This test has inculcated twin conditions to be satisfied to determine the constitutional validity. The first condition emphasizes the need for the classification to be on the basis of intelligible differentia. The second condition is that the differential must be in a rational relation with the sought object that is to be achieved by the act. This Section is not something that was formed in a nick of time, but over a period of time. Shedding light on its evolution process would render an understanding of its object. Before August 11, 2023, there was no separate section specifically dealing with this matter.

However, these matters were brought to attention, by merging two sections of the Indian Penal Code that is Section 376 and Section 90. Section 376 of IPC deals with the punishment for the offence of rape and Section 90 deals with consent to be given under fear or misconception. Hence this act of sexual intercourse by deceitful means were considered as rape.

The Differing Concept of Consent:

The section of rape in itself is very complicated, considering all the intricacies it has waived in both technical and theoretical spheres. One of the prime essential to prove the offence of rape is the 'absence of consent'. The term consent refers to the expression of free will and autonomy of an individual who is free from coercion. It is vital that the person consenting must be aware of all the consequences he will be facing as the result.

With reference to Section 90 of IPC, in certain circumstances even the consent given shall be considered as no consent provided, they are obtained by means of misconception of fact, concealing of identity or through fear. Hence when a man induces the women, to have sexual intercourse with him through a false promise of marriage, Section 90 shall take effect read with Section 376 thereby culminating in an offence of rape. This was the position, till the enactment and enforcement of the new Act.

This classification of this offence as rape has faced a severe backlash in the legal society. In the offence under Section 69, there is no absence of consent but instead the presence of consent would be contingent upon the promise that the other party makes. Hence it would be a consensual sexual intercourse however, upon disconformity with the promise the whole point of consent becomes meaningless. This is when it was debated that rather recognizing it as rape it has to be seen as a case of deceit, which is less degree than rape.

Owing to the criticism, in the new enactment it is highlighted that this offence is no longer considered as rape rather as an offence of sexual intercourse by deceitful means. In the new enactment it is not the element of consent that matters but it is the level of deceit that has become the focal point.

Rationale behind section 69

[5]According to the 2021 report of the National Crime Records Bureau there are about 31,677 cases of rape registered in India, out of which about 56% of them are cases of false promise of marriage which is alarmingly high. This postulates one thing, that women were, is and will continue to be the vulnerable section in the society if this situation were to persist. Especially this offence is more prevalent in states like Uttar Pradesh which happens to be one of the states with the lowest literacy rate.

One of the contributing factors, to this offence is lack of education. These women are more prone to fall for deceit. It is an irrebuttable fact that men target these vulnerable women to sexually exploit them, with the fake promise of marriage and once they are done with them, they desert, but it is the women who have to live with the scar for the rest of her life. In certain exceptional cases the women who is tangled up in this kind of situation might even get pregnant, which adds more perplexity to the situation because then she would become an ineligible member of the marriage market, and then again would be perceived as defiant in the eyes of the society.

Unfortunately, we live in a society where women are judged and ridiculed for their every action. We live in a society where men and women are positioned in different social strata, where men are in a dominant position and are more independent. A man going out at night is fine but when the same is done by a woman she is being judged. A man consuming alcohol is fine but when the same is reciprocated by a woman she is labelled as nasty.

As Malcom said "A wrong is a wrong no matter who does it and who says it", but to the disappointment, it is not how our Indian society is adapted, different rules and morals are construed for each gender. The legislature considering the consequences that a woman is put through, has ensured protection for her, especially through incorporation of this section.

The object being protection of woman, it is rightly obtained through the incorporation of this section "Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine".

Certain feminist thinkers have found the phrase that was added in the explanation clause i.e. "deceitful means" shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity", as offensive and degrading of women's dignity, as the perception that a woman, would get into a sexual relationship with a man just for the sake of employment is preposterous. But what these feminist thinkers have failed to consider is the actual field reality.

The literacy rate among women has considerably increased even though ironically women labour force participation is only 37% which is 39 million out of the 361 million men. There are many desperate women out there looking for jobs, to maintain their family economy, and men who are at the fiduciary advantage use this as an opportunity to sexually exploit them, and as a result many end up being a housewife.

Just talking about occupational equality will not earn us anything unless some reformation is done hence it is significant to bring the act of false promise of employment and promotion also to be included within the ambit of 'deceitful means'. This prevents these acts of sexual exploitation by providing a conducive environment for woman to work safely. [6]The 300-page Hema committee report submitted to the chief minister of Kerala in December 2019 along with necessary evidence and findings would reiterate the relevance of this provision in BNS, in the context of the contemporary society.

Another concern that was raised in relation to this section is that it impliedly targets live-in relationships, which is in contravention to the judgement of [7]S. Khushboo vs. Kanniamal & anr (April 2010), wherein, live-in relationships were not considered as illegal. However shedding light on the case of [8]Pramod Suryabhan Pawar v. State of Maharashtra shall give us a differing insight.

In this case the complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR stating that a distinction has to be made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. Inferring from this judgement live in relationships will not come within the purview of this section as here both parties enter into this relationship with no commitment, meaning with no intention of marriage, even if such conversation arises at any stage of the relationship, they commit to it knowing the uncertainty of them ending up together which defeats the whole point of this section, henceforth this section would not cover live-in relationships.

To sum up, when it comes to the validity of this section, it is constitutionally valid and hasn't violated Article 14 of the Constitution. Article 14 of the Constitution emphasizes about the need to have equality before law and equal protection of law, it is for this reason it has brought the test of reasonable classification. The term reasonable classification emulates the power of the government in making laws covering only specific class of people for the purpose of their upliftment and in doing so achieving equality.

Section 69 reserves protection, especially to women in order to decrease the victim rate which is alarmingly high inferring from the data presented above. The high victim rate reveals the subservient position that women are in the society which calls for upliftment.

Hence it has satisfied the very first rule of the twin test which is intelligible differentia by extending protection to women, thereafter it could be seen that the whole skeletal structure of this section itself is construed upon its object of upliftment, which it does by penalizing the act of sexual intercourse through deceitful means, therefore satisfying the second condition as well. On the final note Section 69 of BNS is constitutionally valid.

The Question of Gender Neutrality:

We seek equality and try to achieve it in almost every sphere of life. But the answer to the question whether our laws are constructed in a way to facilitate the concept of equality is still ambiguous. The raising debate over Section 69 has led to yet another query as to why there is no gender-neutral law recognized in terms of sexual offences especially rape. [9]About 14% of reported rapes involve men or boys, and that 1 in 6 reported sexual assaults is against a boy and 1 in 25 reported sexual assaults is against a man.

But lack of gender-neutral law in India has rendered these men victims defenseless with them having no option of protection under our law. Gender neutral law seek to address the legal consideration for ensuring that laws are applicable to everyone irrespective of their gender. It is the need of the hour to address the raising sexual assault against men. The government by failing to recognize gender neutrality in law is only reflecting their millennial thought process. The austere stereotypes of our Indian society are the biggest impediment which makes it difficult to recognize gender neutrality.

Our Indian society is sculpted in a way where a predetermined position is decreed for every individual with men occupying the dominant position in the social strata. As an individual occupying dominant position, men in our society are expected to adhere certain archaic dogmas like men should not cry, men should refrain from expressing their feelings, men are supposed to be strong and so on.

The trait of expressing their feelings is associated with lack of manliness, in such a case when an injustice like sexual assault is perpetrated against them, it becomes a matter of flawed masculinity and the society largely judges them and even questions their gender identity. So, when it comes to sexual offences it is so gendered that an instance of sexual assault is seen as a failure of that man to live up to his positioned role. It is a predefined notion that is sculpted in our mind that sexual offense is done against women by men, but that is not the reality. Not just men there is also no protection for transgender people as well.

In the Transgenders Act under Section 18 transgenders are given protection against sexual assault with the punishment of not less than six months but which may extend to two years and with fine. Even if this section is presumed to include rape still the degree of punishment is too lenient and discriminatory. [10]

The most recent incident that took place in Trichy serves as a good example to this, where Kanmani a transwoman having moved to Trichy for a fresh start was allegedly arrested for theft and was confined where the jail warden raped her and when she sought to file a case against him, she was tortured by means of solitary confinement and yet after several years of protest the jail warden is serving 2 years of imprisonment. The differing degree of punishment for the same offence but for different genders only leads to an assumption of how there is a biased treatment of each gender. [11]

According to the 2015 report of the National Integrated Biological and Behavioural Surveillance (NIBBS), the National AIDS Control Organization (NACO), and the Ministry of Health and Family Welfare states that 31.5 per cent of transwomen said their first sexual encounter with a man was non-consensual/forced and many of these cases go unreported. Article 15 of the Indian Constitution talks about prevention of discrimination against citizens on the basis of sex, caste, religion, race and place of birth, considering that isn't the mere assumption that only women are the victims of sexual offences a way of discriminating against that gender.

Today we live in an era where the concept of preposition of each gender in the social strata is getting receded all thanks to the various social movements. However, on the verge of obtaining female equality we have failed to consider the occurring injustice against other genders. It is high time for the people to accept that other genders are also exposed to various kinds of sexual offences.[12] It is a fact that other genders also experience the similar effects of sexual offence like that of a women like shame, anger, fear and more importantly questioning their own gender identity. Hence it is important that the legislators recognize the hardships that other genders face and accordingly take steps to neutralize the provisions relating to sexual offences.

End Notes:

1. https://www.prrac.org/projects/fair_housing_commission/los_angeles/AndPoorGetPoorer-TheNation.01.96.pdf
2. https://hckinfo.kerala.gov.in/digicourt/Casedetailssearch/Statuscasenovoice; WP(C) No: 31598/ 2024
3. Andrew Heywood, Political Ideologies: An Introduction 32(3d ed. 2003).
4. State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1
5. https://timesofindia.indiatimes.com/city/lucknow/marriage-promises-led-to-57-rapes-in-up/articleshow/78798446.cms
6. https://www.bbc.com/news/articles/cgq24z8z817o
7. S. Khushboo v. Kanniammal, (2010) 5 SCC 600
8. Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608
9. https://endsexualviolence.org/where_we_stand/male-victims/
10. https://www.outlookindia.com/national/the-many-rapes-of-indias-transgender-citizens
11. https://www.outlookindia.com/national/the-many-rapes-of-indias-transgender-citizens
12. https://pmc.ncbi.nlm.nih.gov/articles/PMC10135558/#sec1-behavsci-13-00304

Also Read:

• Gender Inclusivity In The Indian Laws
• Gender Inclusivity Towards Women In The Indian Laws
• A Call For Gender Inclusivity In Criminal Laws
• Advancing Gender Equality In The Workplace: Strengthening Women' Rights Through Labour Law