Penal code woes: Enact laws that have a good chance to endure

livemint.com:

The case for shedding a colonial-era penal code rests not just on how outdated some of its provisions are, but on a need to actualize our 1947 liberation from foreign rule. Individual liberty, it was hoped, could be maximized within the constraint of neither depriving others of it, nor causing anyone harm—a live-and-let-live model.

A recent let-down for such a liberal order was the news of a parliamentary panel asking for adultery to be listed as an offence under the Bharatiya Nyaya Sanhita (BNS), which India’s government plans to replace the Indian Penal Code (IPC) of 1860 with. As a weapon designed for males to wield against their wives’ lovers, the old IPC version denied women sexual agency and was struck down by the Supreme Court in 2018.

Should marital infidelity now be outlawed by a gender-neutral provision? While this may satisfy the equality test, the judicial ruling that scrapped the Victorian ban also held it to be in violation of Article 21—our right, i.e., to life and liberty. As adultery can split families and cause pain, it requires some restraint, no doubt, but every misdeed is not a crime.

Prison for consensual sex is not just too harsh, it would also legitimize a nosey state with likely disregard for privacy. Ideally, for gender justice to be served, the committee that has the BNS under scrutiny should focus on the draft’s misses and mis-steps, as outlined by Mint (bit.ly/488xLWz) in August.

The bill fails to outlaw marital rape, for example, a missed chance to protect female free will from undue male privilege. But it would make it illegal to use “deceitful means" for marriage, with deceit defined to cover not just false avowals, but “suppressing identity." This part looks aimed at so-called ‘love