The Rights of Women under the | BNSS 2023

The Rights of Women under the BNSS, 2023: Arrest and Custody, the Recording of Her Account, Medical Examination and Trial, and the Principles Behind the Provisions

The provisions of the Sanhita concerning women are scattered through the statute, but they have a common object: to enable a woman to give her account once, to a woman, without an audience, and without her identity becoming public — and to ensure that the process by which the law examines her wrong does not become a second wrong.

They fall into four groups: the provisions governing her arrest and custody, those governing the recording of her account, those governing her medical examination and the trial, and a set of provisions elsewhere in the Sanhita which bear on her position.

1. The Provisions

Figure 1: The four groups

1.1 Arrest and custody

Section 43(5): no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances — and then only by a woman police officer with the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Section 43(2): where a woman is to be arrested, her submission to custody on an oral intimation of arrest shall be presumed, and, unless the police officer is a woman, he shall not touch her for the purpose of making the arrest.
Section 46: whenever it is necessary to cause a woman to be searched, the search shall be made by another woman, with strict regard to decency.

1.2 The recording of her account

Proviso to section 173(1): information relating to the specified sexual offences shall be recorded by a woman police officer or any woman officer; and where the informant is temporarily or permanently disabled, the information shall be recorded at her residence or a place of her choice, in the presence of an interpreter or special educator, and videographed.
Proviso to section 180: the statement of a woman against whom such an offence is alleged shall be recorded by a woman police officer or any woman officer.
Section 183(6): her statement recorded by a Judicial Magistrate as soon as the offence is brought to the notice of the police — and where she is temporarily or permanently mentally or physically disabled, videographed and treated as a statement in lieu of examination-in-chief, so that she gives the account once.

1.3 Medical examination and trial

Section 184: the medical examination of a victim of rape by a registered medical practitioner, with her consent, the report forwarded to the investigating officer and then to the Magistrate within seven days.
Section 366(2): the inquiry into and trial of the specified sexual offences shall be conducted in camera, as far as practicable before a woman Judge or Magistrate.
Section 366(3): it shall not be lawful to print or publish any matter in relation to such proceedings except with the previous permission of the Court, and subject to confidentiality of name and address.

1.4 Elsewhere in the Sanhita

Section 144: maintenance of a wife unable to maintain herself. Section 183: no woman shall be required to attend at any place other than her residence for examination as a witness.
Section 346: the inquiry or trial of a sexual offence completed as far as possible within two months from the filing of the charge sheet. Section 398: the witness protection scheme.
Section 483(1A): the presence of the informant, or a person authorised by her, is obligatory at the hearing of a bail application in the specified sexual offences.

2. The Principles Behind Them

Figure 2: The four principles

📖 State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57

Facts: A woman complained that a police officer had attempted to violate her person. In the disciplinary proceedings which followed, her account was disbelieved substantially on the footing that she was a woman of easy virtue whose testimony was not to be accepted against an officer.

Held: The Supreme Court held that the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. It held that she is entitled to the protection of the law in the same measure as any other, and that even a woman of easy virtue is entitled to privacy and no one can invade it at will. The Court held that a woman’s character or reputation does not determine whether her account is to be believed: the evidence is to be assessed on the ordinary tests applicable to any witness, and to disbelieve her because of her way of life is to deny her the equal protection of the law. The Court rejected the reasoning of the tribunal, holding that it had proceeded on a wholly irrelevant consideration, and emphasised that the right to privacy and to the integrity of the person is not forfeited by a woman’s history, her occupation or her circumstances.

Ratio: The unchastity of a woman does not make her open to violation by any person as and when he wishes. Even a woman of easy virtue is entitled to privacy, and her character does not determine whether her account is believed.

📖 Lillu @ Rajesh v. State of Haryana, (2013) 14 SCC 643

Facts: In the medical examination of a rape survivor, a procedure was carried out whose only function was to permit an opinion to be expressed about her prior sexual experience, and the resulting comment was used in the trial to reflect on her credibility.

Held: The Supreme Court held that the procedure in question violates the right of a rape survivor to privacy, physical and mental integrity and dignity, and that its use in a trial is impermissible. The Court held that the procedure has no forensic value in establishing whether the offence was committed: it speaks, at most, to prior sexual experience, which is irrelevant to whether the accused committed the act charged. It held that even where the woman is found to be habituated to sexual activity, that is of no consequence whatever to the question the court has to decide, and that evidence directed to it serves only to humiliate the survivor. The Court directed that the examination be confined to what is medically and forensically necessary, that it be conducted with consent and with regard to dignity, and that the State ensure that health providers are guided accordingly.

Ratio: A procedure whose only function is to comment on a rape survivor’s sexual history violates her privacy, physical and mental integrity and dignity. It has no forensic value, and prior sexual experience is of no consequence to the question before the court.

⚠ The four principles

Privacy and dignity belong to every woman. The right to privacy and to the integrity of her person is not forfeited by her character, her occupation or her history — a proposition which disposes of a great deal of cross-examination that used once to be permitted.

The examination must not become a second assault. A medical examination must be conducted with consent and with regard to dignity, and a procedure with no forensic value whose only function is to comment on her sexual history cannot be justified by the needs of an investigation.

Her identity must not become public. Nothing which directly or indirectly discloses it may be published — not the name, the address, the locality, family details or photographs; courts should not name her in judgments; and documents disclosing identity should be sealed.

And she should not have to tell it twice. Section 183(6) requires the account to be taken once, by a Judicial Magistrate, soon after the event; and where the maker is disabled, that record stands in lieu of examination-in-chief, so she is cross-examined on it without giving the account again.

One further requirement is the most often overlooked. A woman complaining of a sexual offence should be told, at the police station and before any questioning begins, that she is entitled to a lawyer — because the decisions that matter most are taken in the first hours, when she is least able to take them alone.

3. Key Takeaways

The position stated shortly

1. Section 43(5): no woman shall be arrested after sunset and before sunrise save in exceptional circumstances, and then only by a woman police officer with the prior permission of a Judicial Magistrate of the first class.

2. Section 43(2): her submission to custody on oral intimation is presumed, and unless the officer is a woman he shall not touch her. Section 46: a woman is to be searched by a woman, with strict regard to decency.

3. Information relating to the specified sexual offences is recorded by a woman police officer; where the informant is disabled, at her residence, with an interpreter or special educator, and videographed.

4. Section 183(6): her statement is taken by a Judicial Magistrate; and where she is disabled, it is videographed and stands in lieu of examination-in-chief.

5. Section 184: the medical examination by a registered medical practitioner with her consent, the report forwarded within seven days.

6. Section 366(2) and (3): the trial in camera, as far as practicable before a woman Judge, with publication prohibited except with the Court’s permission.

7. Also: no woman required to attend other than at her residence as a witness; the trial completed as far as possible within two months; the witness protection scheme; and the informant’s presence obligatory at a bail hearing.

8. Privacy and dignity are not forfeited by a woman’s character or history, and even a woman of easy virtue is entitled to privacy: Madhukar Narayan Mardikar.

9. A procedure with no forensic value whose only function is to comment on her sexual history violates her privacy, physical and mental integrity and dignity, and prior sexual experience is of no consequence to the question before the court: Lillu.

10. And she should be told, at the police station and before questioning, that she is entitled to a lawyer — the decisions that matter most being taken in the first hours.

4. Frequently Asked Questions

Can a woman be arrested at night?

Not ordinarily. Section 43(5) provides that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances — and then only by a woman police officer with the prior permission of the Judicial Magistrate of the first class having jurisdiction.

May a male officer touch a woman while arresting her?

No. Section 43(2) presumes her submission to custody on an oral intimation of arrest, and provides that unless the police officer is a woman he shall not touch her for the purpose of making the arrest.

Who records the statement of a woman in a sexual offence?

A woman police officer, under the provisos to sections 173(1) and 180; and, under section 183(6), a Judicial Magistrate — whose record, where she is temporarily or permanently disabled, is treated as a statement in lieu of examination-in-chief so that she need not narrate the offence again.

Does a woman’s character affect whether she is believed?

No. The unchastity of a woman does not make her open to violation by any person as and when he wishes, and her character does not determine whether her account is accepted — the evidence being assessed on the ordinary tests applicable to any witness: Madhukar Narayan Mardikar.

Is prior sexual experience relevant?

It is of no consequence whatever to the question the court has to decide. A procedure whose only function is to comment on it has no forensic value and violates the survivor’s privacy, physical and mental integrity and dignity: Lillu @ Rajesh v. State of Haryana.

Must a trial of a sexual offence be held in camera?

Yes. Section 366(2) requires the inquiry into and trial of the specified offences to be conducted in camera, as far as practicable before a woman Judge or Magistrate, with publication prohibited except with the Court’s previous permission.

Related Topics

In-Camera Trials and Proceedings in Sexual Offences
The Rights of the Victim under the BNSS, 2023
Statement Before a Magistrate: Section 183, BNSS
Medical Examination of the Victim of Rape: Section 184, BNSS
Arrest and the Rights of an Arrested Person: Chapter V, BNSS
Maintenance of Wives, Children and Parents: Section 144, BNSS