On Monday, the Kerala High Court requested the Central government to respond to a public interest litigation (PIL) questioning the constitutional validity of Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS).

This section criminalizes sexual intercourse under a false promise of marriage, stipulating penalties of up to ten years in prison and a fine.

Advocate Vimal Vijay has filed a public interest litigation (PIL) challenging the constitutionality of Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS). This section criminalizes sexual intercourse based on deceitful means or a false promise of marriage, and the PIL argues that it infringes upon several fundamental rights, including the right to equality under Article 14, the right to freedom of speech and expression under Article 19(1)(a), and the right to life and personal liberty under Article 21. 

The Division Bench, consisting of Justice A Muhamed Mustaque and Justice S Manu, has instructed the Central government to respond to the constitutional issues raised by the petitioner.

The Section reads as follows:

Section 69: Sexual intercourse by employing deceitful means, etc: Whoever by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Explanation – “deceitful means” shall include the false promise of employment or promotion, inducement or marrying after suppressing identity.

The petitioner argues that Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS) is inherently discriminatory, as it only classifies men as perpetrators of deceit in sexual relationships, which violates the principle of reasonable classification under Article 14. The petitioner also contends that the provision cannot be justified as a special protective measure for women under Article 15(3), as it does not uplift or empower women but rather reinforces misogynistic stereotypes.

The plea draws comparisons to the now-repealed Section 497 of the Indian Penal Code, which criminalized adultery based on similar patriarchal assumptions. The PIL also highlights that Section 69 fails to protect individuals in live-in relationships and LGBTQIA+ people, neglecting diverse relationship dynamics and sexual orientations.

Additionally, the petitioner argues that Section 69 criminalizes consensual sexual relations outside of marriage, infringing on individuals' rights to privacy and sexual autonomy under Articles 19(1)(a) and 21. The PIL asserts that the complexity of personal relationships cannot be legislatively reduced to penalize consensual acts that do not lead to marriage.

The petitioner also criticizes the provision's vagueness, particularly concerning the term “identity suppression,” which lacks a clear definition. This ambiguity could lead to arbitrary interpretations, potentially criminalizing actions based on factors such as marital status, caste, religion, or profession.

The court will further review the case after the Central government submits its response.