BNS makes sex crimes gender neutral; new clauses for crimes against children and women – Kashmir Observer

New Delhi- According to official documents, the recently enacted Bharatiya Nyaya Sanhita Act, which replaced the British Penal Code in India, declared sexual offences as “gender neutral” for both the victim and the perpetrator.

“Both boys and girls can be procured for the purpose of sexual exploitation. The word ‘minor girl’ in Section 366A of the IPC has been replaced by the word ‘child’ in Clause 96 of the BNS to include both male and female children below the age of 18 years and the offence of procuring has been made punishable,” the explanatory note to the new penal law reads.

The article stated that Section 366B of the Indian Penal Code has been gender-unified by replacing the phrase “importation of a girl child from a foreign country” with “importation of a girl child or boy child from a foreign country”.

This has been inserted as Clause 141 in the BNS to make it an offence to bring to India a girl below the age of 21 years or a boy below the age of 18 years with intent to compel or seduce such person to engage in illicit sexual activity with another person, the document said.

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

The documents show that the BNS has also introduced a new chapter titled “Crimes against Women and Children” which is said to cover sexual offences.

Similar offences under the Indian Penal Code are discussed in the chapter on “Offences against the Human Body”.

In addition, the bill (BNS) proposes changes to the regulations regarding the rape of women under the age of 18.

As stated in the documents, the Act renumbers existing rape laws and harmonises the treatment of gang rapes of minor women with the Protection of Children from Sexual Offences (POCSO) Act.

Further, the BNS said it had introduced age-based classification of rape victims, taken from the IPC and POCSO, and also provided for different sentencing options for rape of minors below the age of 18, 16 and 12 years.

As is clear from the explanation, the range of punishment for rape of minors of different ages is substantially the same under IPC, POCSO and BNS.

It was further stated that section 64(1) provides for a sentence of imprisonment from 10 years to life imprisonment for a person accused of rape, while section 64(2) provides for a sentence of imprisonment from 10 years to life imprisonment for aggravated forms of rape until the end of the person’s life.

In addition, Article 70(2) of the BNS introduces a “new crime” – gang rape of a woman under 18 years of age.

This clause of the BNS merges Sections 376DA and 376DB of the Indian Penal Code and removes the age criteria for making gang rape of a minor a criminal offence.

“This new offence proposes to make gang rape of all minor females punishable with death or imprisonment for life. At present, the IPC provides for such sentence only in the case of gang rape of a woman below 12 years of age under Section 376DB,” the document reads.

Another “significant change”, as stated in the explanatory affidavit, is the raising of the age of consent for a married woman under the definition of rape (Clause 63 of the BNS and Section 375 of the Indian Penal Code) from 15 to 18 years.

“Exception 2 to Section 375 of the IPC provides that sexual intercourse between a man and his own wife, if the wife is not below the age of 15 years, is not rape. The amendment to the age of consent is intended to give effect to the Supreme Court’s judgment in Independent Thought vs Union of India (2017), wherein the exception relating to marital rape was interpreted to the extent that it permitted sexual intercourse between a man and his minor wife above the age of 15 years,” the document reads.

Article 63 of the BNS maintains an exception for marital rape.

Some changes have been made in relation to offences committed against children.

“The newly added clause 95 BNS punishes a person who employs or engages a person under the age of 18 for the purpose of committing a crime.

“The punishment will be the same as that provided for the crime committed by the child as if the crime had been committed by the child himself,” the statement said.

The explanation to paragraph 95 states that exploiting a child for sexual purposes or pornography falls within its meaning.

In addition, Article 137 of the BNS proposes amendments to Article 361 of the Penal Code.

In the Indian Penal Code, this section criminalises the kidnapping of girls below the age of 18, as well as the kidnapping of boys below the age of 16.

According to the official explanation, Article 135 of the BNS Law proposes to make the kidnapping of all children under the age of 18 a crime.

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