Delhi High Court: Women Can Be Charged for Gang-Rape Under BNS Section 70

• The Delhi High Court ruled that women can be charged with gang-rape under Section 70 of the Bharatiya Nyaya Sanhita (BNS).
• Justice Anup Jairam Bhambhani stated that Section 70 BNS is a gender-neutral provision, interpreting 'persons' to include women.
• Physical participation in the act of rape is not required for liability if an individual acts with common intention to commit the crime.
• A woman acting in furtherance of a common intention to commit gang-rape can be held liable, even without direct physical involvement.
• The court found no basis to exempt women from gang-rape charges under Section 70 BNS or its predecessor, Section 376D IPC.

This interpretation clarifies that the term 'persons' within Section 70 is to be understood in a gender-neutral manner, extending potential liability to women.

The Delhi High Court has issued a significant ruling affirming that women can face charges for the offense of gang-rape under Section 70 of the Bharatiya Nyaya Sanhita (BNS). This decision came in the case of Ansxxx and anr v. State of NCT of Delhi And Anr, where Justice Anup Jairam Bhambhani delivered the court's interpretation of the newly enacted law.

The court's pronouncement explicitly states that Section 70 of the BNS is designed as a gender-neutral provision. This interpretation directly addresses the language within the statute, specifically the phrase "one or more persons constituting a group," by clarifying that the term "persons" is not limited to men but encompasses individuals of any gender.

Justice Bhambhani's reasoning underscores that there is no logical basis to restrict the application of this term solely to male perpetrators. Consequently, the court concluded that a woman can indeed be charged with gang-rape, thereby broadening the scope of criminal liability under the new legal framework.

A crucial aspect of the Delhi High Court's ruling is its interpretation of how liability for gang-rape arises, particularly concerning common intention. The court clarified that direct physical participation in the act of rape is not a mandatory condition for an individual to be held accountable for the offense of gang-rape under Section 70 BNS.

This means that a person, including a woman, who acts in furtherance of a common intention to facilitate or enable the commission of gang-rape can be deemed to have committed the offense, even if they did not physically participate in the sexual assault. The court provided an illustrative example: a woman who is not part of the group physically committing the rape may still be liable if she acted with a shared intent to have the crime perpetrated against the victim.

Section 70 of the Bharatiya Nyaya Sanhita explicitly stipulates that any person who is a member of a group, or who acts with a common intention to enable the commission of the crime, is considered to have committed the offense of gang-rape. This statutory language supports the court's expansive interpretation of liability.

The Delhi High Court's decision has significant implications for the prosecution of gang-rape cases in India, particularly under the new Bharatiya Nyaya Sanhita. By affirming the gender-neutral nature of Section 70 BNS, the ruling ensures that the legal framework can address all individuals involved in such heinous crimes, regardless of their gender.

This interpretation clarifies that the term 'persons' within Section 70 is to be understood in a gender-neutral manner, extending potential liability to women. The court explicitly stated that there is no foundation to assert that a woman cannot be charged with gang-rape, whether under the erstwhile Section 376D of the Indian Penal Code (IPC), which Section 70 BNS replaces, or under the new Section 70 BNS itself.

The ruling reinforces the principle that criminal liability for gang-rape extends beyond direct physical perpetrators to include those who contribute through common intention. This comprehensive approach aims to ensure that all individuals who facilitate or participate in such offenses are held accountable under the law, marking a critical development in the interpretation of gender-neutral gang-rape India law.

Lawyers prosecuting or defending gang-rape cases must note the Delhi High Court's interpretation of BNS Section 70, which allows for women to be charged as co-accused based on common intention, expanding the scope of liability beyond direct physical participation. This ruling impacts how investigations are conducted and charges are framed in such cases.

Source: Original reporting via Bar and Bench