Why Women Were Exempted: In Priya Patel (2006) & Hemraj (2009), gang rape was not a standalone offence; it was merely an aggravated sentencing sub-clause under Sec. 376(2)(g) tethered to Sec. 375 ("A man..."). Thus, the Supreme Court held a woman could not share common intention to commit rape.

The Structural Shift: Post-Nirbhaya, Parliament carved out Section 376D as an independent substantive offence, elevating the deeming fiction from a mere Explanation into the primary enacting clause and expanding the physical definition of rape to include object insertion.

Interpreted in ANSXXX (2026): Reading "persons" in Section 70 BNS with Section 2(26) BNS (which defines "person" in a gender-neutral manner), the Delhi HC ruled that any female group member facilitating a male perpetrator is legally deemed to have committed gang rape.

✓ Positive Causes & Protective Impact

1. Crushing Trafficking & Brothel Syndicates: Female "madams" and wardens who drug, lock up, and restrain minor girls for male customers now face the full mandatory minimum of 20 years to life (or death under Sec. 70(2) BNS).

2. Punishing Familial Betrayal: Where a female guardian actively hands over a child or woman to a male predator and stands guard (as in ANSXXX), the law now captures the group dynamics of the betrayal.

3. Survivor-Centric Jurisprudence: Being pinned down by a woman while being violated by a man is an unmistakable act of collective gang violence.

⚠ Negative Causes & Collateral Misuse

1. Weaponization Against Female Relatives: In false "promise to marry", matrimonial, or elopement FIRs, adding a single line—"His mother or sister locked the room from outside"—can now jail the entire female household under non-bailable Gang Rape (Sec. 70 BNS).

2. Statutory Bar on Anticipatory Bail (Sec. 482(4) BNSS): Invoking Sec. 70 BNS triggers the severe statutory bar on Anticipatory Bail alongside reverse presumptions under Section 120 BSA, 2023.

3. Zero Judicial Discretion in Sentencing: Courts cannot award less than 20 years Rigorous Imprisonment even to a peripheral female co-accused.

Do NOT Blindly File Discharge Petitions Citing Only Priya Patel (2006)

The Fix: Distinguish ANSXXX on facts by proving the absence of a pre-arranged plan, prior meeting of minds, or active contemporaneous facilitation at the crime scene, while preserving the Article 141 & strict construction challenge for the Supreme Court.

Do NOT File Routine Anticipatory Bail Without Addressing Sec. 482(4) BNSS

The Fix: Directly invoke the High Court's inherent and writ jurisdiction under Section 528 BNSS read with Article 226 to quash the Section 70 BNS addition or seek interim protection by demonstrating that the basic ingredients of "common intention" are absent on the face of the FIR.

Do NOT Draft Vague, Omnibus Allegations Against Female Facilitators

The Fix: Ensure the survivor’s statement under Section 183 BNSS (164 CrPC) specifically records overt physical or tactical acts (luring, spiking drinks, bolting the door, holding the survivor) proximate to the commission of the offence.

Do NOT Frame a Solitary Charge Under Sec. 70 BNS Without an Alternative Charge

The Fix: Always frame an alternative charge under Section 49 r/w Section 64 BNS (Abetment of Rape) and Section 17 POCSO (where applicable) so the conviction remains 100% bulletproof even if the Supreme Court later modifies ANSXXX.

Advocate Hamza

Practicing Litigation Counsel specializing in Criminal Defense & Prosecution under the Bharatiya Nyaya Sanhita (BNS), BNSS, BSA, High Court Quashing Petitions (Sec. 528 BNSS), Bail Jurisprudence, and Constitutional Litigation.