Tougher Laws for Sexual Offences
The BNS has significantly introduced a new Chapter on ‘offences against women and child. The new Law, by placing this Chapter in the early part of statute (i.e. as Chapter V) signifies the importance given to tackling crime against women and child.
Sexual Offences are now Gender Neutral
2. Various sexual offences have been made gender neutral in terms of both the victim and the perpetrator. This was also recommended by the Verma Committee as well as 172nd Law Commission Report/LCR. This modification in BNS will allow protection of all, irrespective of gender, from unwanted sexual advances.
3. Both boys and girls could get procured for sexual exploitation. The word ‘minor girl’ in section 366A of 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.
4. The section 366B in IPC has been made gender neutral by replacing the phrase ‘importation of girl from foreign country’ by ‘importation of girl
or boy from foreign country’ and has been introduced as clause 141 in the BNS to cover the offence of importing into India any girl under the age of twenty-one years or any boy under the age of eighteen years with intent that such person will be forced or seduced to illicit sexual acts with another person.
New Chapter on ‘Offences Against Women and Child’
5. The BNS introduces a new chapter titled ‘Offences Against Women and Children’ to deal with sexual offences. Similar offences under the IPC are part of the chapter on ‘Offences Affecting the Human Body’. Additionally, the Law 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 POCSO.
6. Further, the Bill 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 respectively. The range of punishments for rape of minors of different ages is largely the same across the IPC, POCSO, and the BNS.
7. Cl. 64(1) punishes rape accused with ten years to life in TV um imprisonment whereas Cl. 64(2) punishes aggravated forms of rape with ten years to life imprisonment for the remainder of a person’s natural life.
8. Cl. 70(2) of BNS introduces a new offence of gang rape of a woman under 18 years of age. Cl. 70(2) BNS merges s. 376DA and s. 376DB, 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 s. 376DB.
9. Another significant change is that the age of consent for a married woman under the definition of rape (Cl. 63 BNS and s. 375 IPC) has been increased from 15 to 18 years. Exception 2 to s. 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 age of consent seeks to give legislative effect to the Supreme Court’s judgment in Independent Thought v. 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. Cl. 63 of the BNS retains the marital rape exception.
Offences against children
10. Some changes proposed in the BNS relate to offences against children which include creation of new offences or changes to the ones in the IPC. The newly added Cl. 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. The explanation to Cl. 95 states that using a child for sexual exploitation or pornography is included within its meaning.
11. Additionally, Cl. 137 of the BNS proposes to make changes to s. 361 of the IPC. While s. 361 criminalises kidnapping of girls below the age of 18 years along with kidnapping of boys under 16 years, Cl. 135 proposes to make kidnapping of all children below 18 years of age an offence.
