The newly introduced Bharatiya Nyaya Sanhita (BNS), replacing the British-era Indian Penal Code (IPC), has introduced significant changes in India’s criminal justice system, particularly by making sexual offences gender-neutral for both victims and perpetrators. According to official documents, this major shift in legal language aims to cover the sexual exploitation of both boys and girls, marking a crucial departure from earlier laws that primarily focused on female victims.
Gender-Neutral Sexual Offences
One of the key amendments under the BNS is the replacement of the term “minor girl” in Section 366A of the IPC with the word “child” in Clause 96 of the BNS, ensuring that both male and female children below 18 years are covered under the offence of procurement for sexual exploitation. This change underscores the broader scope of protection, acknowledging that boys, too, can be victims of sexual exploitation.
The previously gender-specific Section 366B of the IPC, which dealt with the importation of girls from foreign countries for sexual purposes, has also been revised. Under the BNS, it now applies to both girls and boys. This offence, now included as Clause 141 of the BNS, addresses the crime of importing any girl under the age of 21 or any boy under the age of 18 into India with the intent to force or seduce them into illicit sexual acts. This marks a critical step toward gender equality in protecting minors from sexual exploitation.
Introduction of ‘Offences Against Women and Children’ Chapter
The BNS also introduces a new chapter titled ‘Offences Against Women and Children,’ specifically dealing with crimes related to sexual offences. Previously, such offences were included in the broader chapter on ‘Offences Affecting the Human Body’ under the IPC. This new dedicated chapter underscores the gravity and distinct nature of crimes against women and children, providing a more focused legal framework for these serious offences.
Changes to Rape Provisions
The law also introduces several changes concerning the rape of women under the age of 18, harmonizing existing provisions of the IPC with the Protection of Children from Sexual Offences (POCSO) Act. It introduces an age-based classification of rape victims, prescribing different punishments based on the age of the victim—under 18, 16, and 12. This nuanced approach ensures that younger victims are afforded greater protection and more stringent penalties are imposed on offenders.
The BNS outlines that Clause 64(1) punishes rape with imprisonment ranging from 10 years to life, while Clause 64(2) introduces aggravated forms of rape, which may result in life imprisonment for the remainder of a person’s natural life. Moreover, Clause 70(2) introduces a new offence, merging the existing Sections 376DA and 376DB of the IPC. This “new offence” of gang rape of a minor woman removes age-based qualifiers, considering the gang rape of any minor girl as an aggravated offence punishable with either the death penalty or a life sentence. This is a significant shift from the IPC, where such stringent punishments were limited to cases involving girls below the age of 12.
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Raising the Age of Consent in Marital Rape
A noteworthy change in the BNS is the increase in the age of consent for married women from 15 to 18 years. Under the IPC, Section 375 (Exception 2) stated that sexual intercourse between a man and his wife, if the wife was over the age of 15, did not constitute rape. The BNS now raises this age threshold to 18, aligning with the Supreme Court’s 2017 judgment in Independent Thought vs. Union of India, which partially read down the marital rape exception. Despite this amendment, Clause 63 of the BNS retains the marital rape exception, keeping the controversial legal debate around this issue alive.
Protection of Children from Exploitation
Several changes have been made concerning crimes committed against children. Clause 95 of the BNS introduces strict penalties for individuals who hire, employ, or engage any person under the age of 18 for committing an offence. The punishment for such a person will be equivalent to the punishment applicable to the child committing the offence, essentially holding the adult fully accountable. This clause also includes the use of children for sexual exploitation or pornography within its scope.
Additionally, Clause 135 of the BNS proposes making the kidnapping of all children under 18 years of age a punishable offence. This extends the provisions of Section 361 of the IPC, which previously criminalized the kidnapping of girls below 18 and boys under 16, now encompassing all minors.
The Bharatiya Nyaya Sanhita brings about comprehensive reforms in India’s criminal laws, particularly in addressing gender neutrality in sexual offences, refining rape provisions, and bolstering protections for minors. These changes reflect a significant shift towards a more inclusive legal framework, aiming to safeguard both boys and girls from exploitation and ensuring that perpetrators, regardless of gender, face appropriate legal consequences.
