Bharatiya Nyaya Sanhita makes sexual offences gender neutral; new clauses for crime against children, women

NEW DELHI: The newly enacted Bharatiya Nyaya Sanhita, which replaces the British-era Indian Penal Code, has made sexual offences "gender neutral" for the victim and the perpetrator, according to official documents.

"Both boys and girls could get procured for sexual exploitation. The word 'minor girl' in section 366A of the IPC has been replaced with the word 'child' in clause 96 of the BNS to cover both male and female children below the age of 18 years and the offence of procurement has been made punishable," an explanatory note for the new criminal law said.

It said Section 366B in the IPC has been made gender neutral by replacing the phrase "importation of girl from a foreign country" with "importation of girl or boy from a foreign country".

It has been introduced as clause 141 in the BNS to cover the offence of importing into India any girl under the age of 21 years or any boy under the age of 18 years with the intent that such person will be forced or seduced to illicit sexual acts with another person, it said.

The BNS, Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) came into effect on July 1. They replace the IPC, Code of Criminal Procedure (CrPC) and the Evidence Act respectively.

The BNS also introduces a new chapter titled 'Offences Against Women and Children' to deal with sexual offences, according to the documents.

Similar offences under the IPC were part of the chapter on 'Offences Affecting the Human Body'.

Additionally, the law (BNS) proposes changes to provisions relating to rape of women under the age of 18.

It renumbers existing rape provisions and harmonises the treatment of gang rape of minor women with the Protection of Children from Sexual Offences Act (POCSO), the documents said.

Further, it said, the BNS has introduced age-based classification of rape victims from the IPC and POCSO and prescribes different sentencing options for the rape of minors under the ages of 18, 16 and 12.

The range of punishments for rape of minors of different ages is largely the same across the IPC, POCSO, and the BNS, according to the explanation.

It further said that Clause 64(1) punishes a rape accused with 10 years to life imprisonment whereas Clause 64(2) punishes aggravated forms of rape with 10 years to life imprisonment for the remainder of a person's natural life.

Additionally, Clause 70(2) of the BNS introduces a "new offence" of gang rape of a woman under 18 years of age.

This clause of the BNS merges sections 376DA and 376DB of the IPC and removes age-based qualifiers to consider gang rape of a minor woman as an aggravated offence.

"This new offence proposes that gang rape of all minor women be punishable with death or with whole life sentence. The IPC currently provides this sentencing option only for the gang rape of a woman under 12 years under section 376DB," it said.

Another "significant change", as per the explanatory statement, is that the age of consent for a married woman under the definition of rape (Clause 63 BNS and section 375 IPC) has been increased from 15 to 18 years.

"Exception 2 to section 375 IPC provides that sexual intercourse between a man and his own wife, wife not being under the age of 15, is not rape. The change in the age of consent seeks to give legislative effect to the Supreme Court's judgment in Independent Thought vs Union of India (2017), where the marital rape exception was read down to the extent that it allowed sexual intercourse between a man and his minor wife over the age of 15 years," it said.

Clause 63 of the BNS retains the marital rape exception.

There are some changes made for crimes perpetrated against children.

"The newly added Clause 95 of the BNS punishes a person who hires, employs or engages any person below the age of 18 years to commit an offence.

"The punishment will be the same as that provided for the offence committed by the child as if the offence has been committed by such person himself," it said.

The explanation to Clause 95 states that using a child for sexual exploitation or pornography is included within its meaning.

Additionally, Clause 137 of the BNS proposes to make changes to section 361 of the IPC.

Under the IPC, this section criminalised the kidnapping of girls below the age of 18 years along with the kidnapping of boys under 16 years.

Clause 135 of BNS proposes to make kidnapping of all children below 18 years of age an offence, as per the official explanation.