The Bharatiya Nyaya Sanhita, 2023 (BNS), which aims to strengthen legal rights for children has important clauses against offences against children. The following are the main points covered by the BNS regarding offences against children.
In line with international guidelines for child protection, the BNS defines a “child” as any person under the age of eighteen.
The BNS recognizes the vulnerability of minors and applies harsher punishments for offences against children. Included in this are harsh penalties for sexual offences, which are regarded more seriously than comparable offences against adults.
The law has provisions for a number of crimes, including sexual assault, exploitation, and trafficking, that target minors. It seeks to ensure that any gaps in earlier laws are closed through coverage of child abuse in all its manifestations.
Community service is now an option for punishment for some acts under the BNS, which shows a move in the direction of restorative justice. This strategy aims to encourage accountability while enabling criminals to make constructive contributions to society.
Certain crimes against children may conflict with current special laws’ provisions, which could make the legal process more difficult. Although there are still worries about possible discrepancies in the fines and processes across many legislations, the BNS seeks to streamline these regulations.
In terms of child safety in particular, the Bharatiya Nyaya Sanhita, 2023, marks a substantial improvement in India’s criminal justice system.
The Bharatiya Nyaya Sanhita, 2023 (BNS) represents a significant step forward in protecting children’s rights and safety in India. By aligning with international standards, broadening the definition of offences against minors, and introducing stricter punishments, the BNS demonstrates India’s commitment to creating a safer environment for its youngest citizens. The inclusion of restorative justice options like community service shows a nuanced approach to rehabilitation. However, potential conflicts with existing laws highlight the need for further harmonization of India’s legal framework concerning child protection. Overall, the BNS marks a crucial evolution in India’s criminal justice system, prioritizing the welfare and security of children while addressing the complexities of modern child protection challenges.
Historical trends and evolution of offences against Children in India
The way India has dealt with crimes against kids has changed a lot over the years. It’s like the country has been slowly waking up to how vulnerable children really are and trying to do more to protect them.
The Way back in the old days, before India was even independent, things were pretty rough for kids. People didn’t think twice about marrying off young girls or even killing baby girls. It was just how things were done. When the British were in charge, they started to make some laws to help, like trying to stop child marriages in 1929.[1] But honestly, these laws didn’t do much because people stuck to their old ways.
After India became independent, things started to change. The country began to take children’s rights more seriously, especially after the UN started talking about it. In the 1980s, India made some big moves. They came up with laws to deal with kids who get in trouble with the law and to stop children from being forced to work in dangerous jobs. It was a good start, but making sure everyone followed these laws was still a big problem.
As time went on, new problems came up. With more people moving to cities and the internet becoming a big thing, kids started facing new dangers like being trafficked or exploited online. In 2012, India passed a really important law called POCSO to deal with sexual crimes against kids. It was a big deal because it got tough on people who hurt children sexually.[2]
These days, people are starting to pay more attention to how abuse affects kids mentally and emotionally, not just physically. They’re realizing that this stuff can mess kids up for a long time.
But here’s the thing – even with all these new laws, there are still big problems. A lot of crimes against kids don’t get reported, the police don’t always enforce the laws properly, and there’s still a lot of shame around talking about this stuff.
Looking at how all this has changed over time, it’s clear that just making laws isn’t enough. India needs to work on a few things at once – keep improving the laws, sure, but also make sure people know about them, and most importantly, find better ways to actually enforce them. It’s a tough job, but it’s super important for keeping kids safe.
Provisions for offences against children under Bharatiya Nyaya Sanhita
Chapter V of the Bharatiya Nyaya Sanhita (BNS), 2023, covers crimes against children and women. Sections 93 to 99 specifically focus on crimes against children. These sections address issues like abandoning or hiding children and also deal with various forms of child exploitation. The provisions aim to protect children from being neglected or taken advantage of, ensuring their safety and welfare.[3]
Abandonment and Concealment of Children
Exposure and Abandonment of a Child
Section 93 of the Bharatiya Nyaya Sanhita (BNS) makes it a crime for a parent or guardian to leave or abandon a child under 12 years of age with the intention of completely abandoning them.
Key Elements:
– The act must be committed by a parent or a person responsible for the child.
– The child must be under 12 years of age.
– The child is left or exposed with the intent to abandon them.
Punishment:
– Up to 7 years imprisonment, or a fine, or both.
Explanation:
– If the child dies as a result of being abandoned, the person can also be charged with more severe crimes like murder or homicide.
Previous Law:
– This was previously covered under Section 317 of the Indian Penal Code (IPC).
Concealment of Birth by Secret Disposal of a Dead Body
Section 94 of the BNS criminalizes secretly burying or disposing of a child’s dead body in order to hide the birth.
Key Elements:
– The offender must have secretly disposed of the child’s dead body.
– The child may have died before, during, or after birth.
– The intent must be to conceal the fact that the child was born.
Punishment:
– Up to 2 years imprisonment, or a fine, or both.
Previous Law:
– This was previously covered under Section 318 of the IPC.
Exploitation of Children
Hiring, Employing, or Engaging a Child to Commit a Crime
Section 95 of the BNS makes it a crime to hire, employ, or use a child to commit an offence.
Punishment:
– Minimum 3 years of imprisonment, which can extend to 10 years, and a fine.
– If the child commits the offence, the person hiring or using the child will also be punished as if they committed the crime themselves.
Explanation:
– This includes hiring or using a child for sexual exploitation or pornography.
Previous Law:
– There was no specific provision for this under the IPC.
Procuring a Child
Section 96 of the BNS criminalizes inducing a child to go somewhere or do something, knowing or intending that the child will be forced or seduced into illicit sexual activity.
Key Elements:
– Any person who induces a child with such intent or knowledge.
Punishment:
– Up to 10 years imprisonment, and a fine.
Previous Law:
– The IPC had a similar provision (Section 366A) for procuring minor girls, but not for children in general.
Kidnapping or Abducting a Child Under 10 for Theft
Section 97 of the BNS criminalizes kidnapping or abducting a child under 10 years old to steal any property from the child.
Punishment:
Up to 7 years imprisonment, and a fine.
Previous Law:
– This was previously covered under Section 369 of the IPC.
Selling and Buying Children for Prostitution or Illicit Purposes
Selling a Child for Prostitution or Other Immoral Purposes
Section 98 of the BNS punishes selling, renting, or otherwise giving away a child with the intent or knowledge that the child will be used for prostitution or immoral purposes.
Punishment:
Up to 10 years imprisonment, and a fine.
Explanations:
– If a girl under 18 years is sold or given to a prostitute or a brothel owner, the law assumes it was done with the intent of using her for prostitution, unless proven otherwise.
– “Illicit intercourse” refers to sexual relations outside of marriage or accepted unions recognized by personal or community customs.
Previous Law:
– This was previously covered under Section 372 of the IPC.
Buying a Child for Prostitution or Other Immoral Purpose
Section 99 of the BNS criminalizes buying or acquiring a child for the purpose of prostitution or other unlawful and immoral activities.
Punishment:
– Minimum 7 years imprisonment, which can extend to 14 years, and a fine.
Explanations:
– If a prostitute or brothel owner buys or obtains a girl under 18 years, it is assumed they intend to use her for prostitution unless proven otherwise.
– “Illicit intercourse” has the same meaning as in Section 98 of the BNS.
Previous Law:
– This was previously covered under Section 373 of the IPC.
The Bharatiya Nyaya Sanhita (BNS) consolidates laws related to offences against children into one chapter. Previously, the Indian Penal Code (IPC) scattered these laws across different sections. The BNS provides a more organized and comprehensive approach to protecting children from various forms of exploitation and harm.
Current Emerging Trends, Patterns and Challenges
The Bharatiya Nyaya Sanhita (BNS), 2023 is designed to strengthen protections for children and replace the old Indian Penal Code (IPC). It focuses on modern issues like child abuse, trafficking, forced labor, and cybercrimes, aiming to ensure that children are better safeguarded from harm.[4]
One of the main areas the sanhita addresses is child sexual abuse and exploitation. It imposes tougher punishments for crimes such as sexual assault and harassment of minors. It also offers special protection for children from abuse by those in positions of trust, such as teachers or guardians, ensuring that individuals responsible for their care cannot misuse their authority for sexual gain.[5]
The Sanhita also tackles child trafficking and forced labor. This includes trafficking children for prostitution, forced labor, or even begging. Harsh penalties are set for those involved in exploiting children for such purposes, and it makes clear that any form of child labor, especially in dangerous conditions, is illegal.[6]
In addition, the Sanhita makes abandonment and neglect of children a crime, Parents or guardians who neglect or abandon their children, particularly when it puts the child’s physical or mental health at risk, can now face legal consequences. This ensures that adults are held accountable for their duty of care towards children.
The Sanhita retains strict laws against kidnapping and abduction, especially when it involves children being taken for ransom, child marriage, or trafficking.[7] It underscores the serious nature of such offenses and seeks to provide stronger legal backing to punish offenders.
When it comes to child marriage, the BNS completely criminalizes the practice. Anyone involved in facilitating or conducting a child marriage, including family members or religious figures, can face severe punishment.[8]
The Sanhita also addresses the issue of children being used in criminal activities, Adults who manipulate or force minors into participating in crimes, like drug dealing or theft, will face harsh penalties. This provision aims to protect children from being exploited by criminals.
Finally, the Sanhita deals with cybercrimes involving children, such as online sexual exploitation or the production and sharing of child pornography. With the increasing use of the internet, these provisions are intended to protect children from online predators and digital abuse.
The Bharatiya Nyaya Sanhita is a comprehensive legal reform that modernizes child protection laws, offering stronger safeguards and more severe punishments for those who harm or exploit children. It reflects a commitment to addressing both traditional forms of abuse and new challenges like cybercrime.
The definition of child sexual abuse under the BNS is broad, covering various forms of assault, harassment, and exploitation. It includes both physical acts of abuse, such as rape and molestation, as well as non-contact offenses like sexual harassment and the use of children in pornography or prostitution. The BNS recognizes that abuse can take many forms, including coercion, manipulation, and exploitation of a child’s vulnerability.[9]
Punishments for child sexual abuse under the BNS are severe, with life imprisonment or even the death penalty for the most heinous cases, such as the rape of very young children or cases where the abuse leads to serious harm or death. Repeat offenders or those who target particularly vulnerable children face even harsher sentences.[10]
A significant focus of the BNS is on preventing abuse by individuals in positions of trust or authority over children, such as guardians, teachers, and religious figures. Recognizing the power imbalance in these situations, the law treats these cases with particular gravity, imposing stricter penalties for those who exploit their trusted roles.
The Sanhita also acknowledges that child sexual abuse is not limited to physical acts. It includes provisions for addressing grooming, where an abuser builds trust with a child or their family to eventually manipulate the child into sexual activities. This is particularly relevant in today’s digital age, where online grooming and exploitation have become major concerns. The BNS includes specific provisions to tackle cybercrimes involving children, including the creation and distribution of child pornography and using the internet to exploit minors sexually.
Alongside punishment for offenders, the BNS prioritizes the protection and rehabilitation of child victims. The law ensures that children are not re-traumatized during the legal process, emphasizing child-friendly legal procedures and protecting the child’s identity. Additionally, it provides support systems to help children recover from the trauma of abuse.
The BNS also addresses cases where children are sexually exploited in an organized manner, such as trafficking for sexual purposes or forced involvement in pornography. In these situations, the law imposes severe penalties not just on the direct perpetrators, but on anyone involved in facilitating or profiting from the exploitation.
In essence, the Bharatiya Nyaya Sanhita represents a comprehensive approach to dealing with child sexual abuse, adapting to modern forms of exploitation like cybercrimes while ensuring that offenders are held accountable through strict penalties. It emphasizes both prevention and victim protection, ensuring that children receive the care and justice they deserve.
Suggestions
The Bharatiya Nyaya Sanhita (BNS) 2023 represents a significant step forward in protecting children’s rights and safety in India. To further strengthen its effectiveness, I suggest implementing a comprehensive, multi-faceted approach that goes beyond just legal reforms:
1. Awareness and Education: Launch nationwide awareness campaigns to educate the public, especially in rural areas, about the new provisions in the BNS regarding offenses against children. This could include:
– School programs to teach children about their rights and how to recognize and report abuse
– Community workshops for parents and caregivers
– Training for law enforcement, teachers, and healthcare workers on identifying and handling cases of child abuse.
2. Improved Reporting Mechanisms: Develop user-friendly, child-appropriate reporting systems that make it easier for children or concerned adults to report suspected cases of abuse or exploitation. This could involve:
– A dedicated child helpline with trained counsellors
– Anonymous online reporting tools
– Child-friendly spaces in police stations for reporting and interviews.
3. Inter-agency Collaboration: Establish a coordinated system that brings together law enforcement, child protection services, healthcare providers, and educational institutions to ensure a holistic approach to preventing and addressing child abuse.
4. Rehabilitation and Support: Expand and improve rehabilitation services for child victims, including:
– Trauma-informed counselling
– Educational support to help children reintegrate into school
– Vocational training for older children
– Family counselling to address root causes and prevent re-victimization,
Conclusion
The Bharatiya Nyaya Sanhita (BNS) 2023 represents a pivotal shift in India’s legal approach to child protection, reflecting a growing recognition of the complexities surrounding offences against children. By introducing more severe punishments for crimes like child trafficking, sexual exploitation, and cybercrime against minors, the BNS sends a strong deterrent message. However, its effectiveness will largely depend on how well it addresses the multifaceted nature of child protection issues in India. The law’s success hinges on overcoming systemic challenges such as underreporting due to social stigma, lack of awareness in rural areas, and inadequate support systems for victims.
The BNS’s provisions for community service as a form of punishment for certain offences indicate a move towards restorative justice, which could be particularly impactful if implemented thoughtfully. Yet, potential conflicts with existing special laws highlight the need for a more harmonized legal framework. Moreover, while the BNS strengthens legal protections, it must be complemented by robust social initiatives addressing the root causes of child exploitation, including poverty, lack of education, and entrenched social norms. The law’s emphasis on crimes facilitated by digital technologies is timely but will require ongoing updates to keep pace with rapidly evolving cyber threats. Ultimately, the BNS’s true measure of success will be its ability to catalyze a broader societal shift towards prioritizing child welfare, fostering a culture of prevention and early intervention, and ensuring that the justice system is accessible and responsive to the unique needs of child victims.
[1] Child Marriage Restraint Act, No. 19 of 1929.
[2] Protection of Children from Sexual Offences Act, No. 32 of 2012.
[3] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 93.
[4] Bharatiya Nyaya Sanhita, No. 45 of 2023.
[5] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 98.
[6] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 99.
[7] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 97.
[8] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 83.
[9] Bharatiya Nyaya Sanhita, No. 45 of 2023.
[10] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 96.
Author: Aditya Kumar, a 2nd year, B.B.A.LL.B( Hons.) student at Chanakya National Law University, Patna.
