Section 376 IPC in BNS: Section 64 Rape Punishment, Bail

Section 376 IPC is now Section 64 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Rape is punishable with rigorous imprisonment of not less than ten years, which may extend to imprisonment for life, along with fine. The definition of rape, earlier in Section 375 IPC, is now in Section 63 BNS.

The definition: Section 63 BNS

Section 63 keeps the structure of old Section 375. It lists the acts in clauses (a) to (d) and makes them rape in seven circumstances: against her will; without her consent; consent obtained by fear; consent based on a false belief that he is her husband; consent given when she cannot understand its nature (unsound mind or intoxication); when she is under eighteen, with or without consent; and when she cannot communicate consent.

Explanation 2 defines consent as an unequivocal voluntary agreement, and adds that lack of physical resistance does not by itself mean consent.

There are two exceptions. A medical procedure or intervention is not rape. Sexual acts by a man with his own wife are not rape, but only if the wife is not under eighteen years of age.

What Section 64 BNS says

Section 64(1) is the general punishment.

Section 64(2) covers aggravated situations, in clauses (a) to (m), where the offender misuses power, trust or the victim’s vulnerability. Examples are a police officer or public servant against a woman in custody, a member of the armed forces in an area of deployment, staff of a jail, remand home, institution or hospital, a relative, guardian or teacher, rape during communal violence, rape of a pregnant or disabled woman, and repeated rape. The minimum stays at ten years, but life imprisonment here means the remainder of the person’s natural life.

Related sections in the same chapter

Section 65: victims under 16 and under 12

Section 65(1) applies where the woman is under sixteen: rigorous imprisonment of not less than twenty years, extendable to life for the remainder of natural life, with fine. Section 65(2), for a victim under twelve, has the same minimum, with death also possible. In both, the fine goes to the victim for medical expenses and rehabilitation.

Section 70: gang rape

Where a woman is raped by persons forming a group or acting in common intention, each is deemed to have committed rape. Under Section 70(1), each faces rigorous imprisonment of not less than twenty years, extendable to life for the remainder of natural life, with fine. Under Section 70(2), where the woman is under eighteen, the punishment is life imprisonment for the remainder of natural life with fine, or death.

Other provisions

• Section 66 (old 376A): causing death or a persistent vegetative state.
• Sections 67 and 68 (old 376B and 376C): husband during separation; person in authority.
• Section 69 (new): sexual intercourse by deceitful means, such as a false promise of marriage.
• Section 71 (old 376E): repeat offenders.

Victim identity protection: Section 72 BNS

Section 72 (old Section 228A IPC) makes it an offence to print or publish the name, or any matter that may make known the identity, of a victim of an offence under Sections 64 to 71. The punishment is imprisonment up to two years and fine. The exceptions are narrow: police acting in good faith for investigation, the victim herself or with her written authorisation, and next of kin (through a recognised welfare organisation) where the victim has died, is a child or is of unsound mind. Section 73 bars publishing such court proceedings without permission.

What changed from the IPC

• Renumbering: 375 became 63, 376 became 64, 376(3) became 65(1), 376AB became 65(2), and 376D became 70(1).
• The two separate gang rape provisions for girls under 16 and under 12 (376DA and 376DB) are replaced by one provision, Section 70(2), for all victims under eighteen.
• Exception 2 to Section 63 now expressly uses the age of eighteen for the wife, in line with the Supreme Court’s 2017 ruling.

Time limits and victim rights under the BNSS

Important case law

• Independent Thought v. Union of India (2017): the Supreme Court read down the marital exception so that it did not protect sexual intercourse with a wife under eighteen.
• Nipun Saxena v. Union of India (2018): no disclosure of a victim’s identity in any media, and rape and POCSO FIRs are not to be placed in the public domain.
• State of Jharkhand v. Shailendra Kumar Rai (2022): the Court condemned the two-finger test as unscientific and held that persons conducting it would be guilty of misconduct.

Common confusions

• Section 64 vs Section 63: Section 63 defines; Section 64 punishes.
• Section 69 vs Section 64: Section 69 applies only where the act does not amount to rape.
• BNS vs POCSO: where the victim is a child, the POCSO Act, 2012 also applies.

Practical guidance for survivors and families

• Information can be given at any police station and is recorded by a woman officer. Any hospital must give free immediate treatment.
• If police refuse to register it, send it in writing by post to the Superintendent of Police (Section 173(4)), then approach the Magistrate.
• Free legal aid is available through the District Legal Services Authority.

Exam angle

• 375 to 63, 376 to 64, 376A to 66, 376D to 70, 228A to 72.
• Minimum sentences: 10 years (64), 20 years (65, 70(1)), death possible under 65(2), 66, 70(2) and 71.
• BNSS time limits: 2 months investigation (193(2)), 2 months trial (346), 7 days medical report (184), 90 days progress update (193(3)).

Frequently asked questions

What is the new section for 376 IPC?

Section 376 IPC is now Section 64 BNS. The definition of rape is in Section 63 BNS.

Is Section 64 BNS bailable?

No. It is cognizable, non-bailable, non-compoundable and triable by a Court of Session.

What is the minimum punishment for rape under BNS?

Rigorous imprisonment of ten years under Section 64. It is twenty years where the victim is under sixteen (Section 65) or in gang rape (Section 70(1)).

Is disclosing a rape victim’s name a crime?

Yes. Section 72 BNS punishes it with up to two years’ imprisonment and fine, subject to narrow exceptions.

Quick quiz

Sources

• Bharatiya Nyaya Sanhita, 2023, Sections 63 to 73
• Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 173, 176, 184, 193, 346, 366, 397 and First Schedule
• Independent Thought v. Union of India (Supreme Court, 2017)
• Nipun Saxena v. Union of India (Supreme Court, 2018)
• State of Jharkhand v. Shailendra Kumar Rai (Supreme Court, 2022)

This page is for education and general information, not legal advice for a specific case.