A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
(i) against her will;
(ii) without her consent;
(iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;
(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;
(vi) with or without her consent, when she is under eighteen years of age;
(vii) when she is unable to communicate consent.
Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
Simplified Explanation
Section 63 of the Bharatiya Nyaya Sanhita (BNS) outlines the offense of rape, defining what constitutes rape under Indian law, the legal criteria for establishing the offense, and the corresponding punishments. This section provides a framework to address and penalize sexual violence, protecting the rights and dignity of individuals and ensuring accountability for perpetrators.
Key Elements of Section 63
- Definition of Rape
- Section 63 defines rape as an act of sexual intercourse or penetration that occurs under circumstances where consent is absent or invalid.
- The absence of consent is key in establishing rape. Consent obtained through force, coercion, deceit, or when the person is unable to give informed consent (due to age, mental incapacity, or influence of substances) is not considered valid.
- Circumstances Constituting Rape
- Rape includes any of the following situations:
- Without Consent: Sexual intercourse or penetration without the voluntary and informed consent of the person.
- Under Coercion or Threats: When consent is obtained through intimidation, threats, or force.
- Deception or Misrepresentation: When consent is obtained under false pretenses or misrepresentation of facts.
- With a Minor: Sexual activity with a minor (below the legal age of consent) is considered rape, regardless of whether consent was given, as minors are legally unable to provide valid consent.
- Rape includes any of the following situations:
- Punishments for Rape under Section 63
- Basic Offense: For cases of rape where no aggravating factors are present, the punishment is imprisonment for a term not less than 10 years, which may extend to life imprisonment, along with a possible fine.
- Aggravated Circumstances: In cases involving aggravated circumstances, such as gang rape, custodial rape, or rape resulting in the victim’s death or severe injury, the punishment may be life imprisonment or even the death penalty, depending on the severity.
- Repeat Offenders: Section 63 prescribes stringent penalties for repeat offenders, often including life imprisonment or capital punishment to deter reoffense.
- Special Provisions for Certain Victims
- Section 63 provides enhanced protection for vulnerable individuals, including minors, persons with disabilities, and those under the care of custodians (e.g., law enforcement, employers).
- Offenses committed against these individuals often carry higher penalties due to the increased vulnerability and potential for abuse of power.
- Medical Examination and Reporting
- Victims of rape are entitled to a free and immediate medical examination to collect evidence, which plays a crucial role in supporting prosecution.
- The law mandates prompt reporting and sensitive handling of rape cases to ensure victims’ rights and dignity are upheld.
- Consent and Its Limits
- Consent must be explicit, voluntary, and informed. Consent given under any form of duress, intoxication, or deceit is considered invalid.
- Section 63 emphasizes that lack of physical resistance does not imply consent, reinforcing that consent must be freely given without any coercion.
- Protection of Victims and Privacy
- Section 63 includes provisions for protecting the identity and privacy of rape survivors, ensuring confidentiality in legal proceedings and media reporting.
- Legal mechanisms, such as in-camera trials, are employed to protect victims from further trauma and to provide a safe environment for testifying.
Importance of Section 63
Section 63 reflects India’s commitment to upholding the rights and dignity of individuals by defining and punishing rape in a comprehensive manner. It serves as a strong deterrent against sexual violence, establishing a zero-tolerance approach and emphasizing justice for victims.
In summary, Section 63 of the BNS defines the offense of rape, outlines the criteria for establishing lack of consent, and prescribes stringent punishments, including life imprisonment and the death penalty, for offenders. This section aims to protect individuals from sexual violence, deter future offenses, and uphold the principle of justice and dignity for survivors.
