Sexual Offences Now Gender Neutral as BNS Makes Major Changes

The recently passed Bharatiya Nyaya Sanhita, which replaces the British Indian Penal Code, has made sexual offences “gender neutral” for the victim and the perpetrator, official documents show.

“Both boys and girls can be recruited for 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 The word ‘minor girl’ in Section 366A of the IPC has been replaced by the word ‘child’ in Clause 96 of the BNS to cover both male and female children below the age of 18 years and the offence of recruitment has been made punishable,” an explanation of the new penal code reads.

It was said that Article 366B of the Criminal Code has been made gender neutral by replacing the phrase “import of girls from abroad” with “import of girls or boys from abroad”.

It has been included in clause 141 of the BNS to cover the offence of importing into India a girl below the age of 21 years or a boy below the age of 18 years with the intention of forcing or enticing such person to engage in illicit sexual acts with another person.

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

The BNS is also introducing a new chapter entitled ‘Crimes against women and children’ to tackle sexual crimes, the documents show.

Similar offences under the Criminal Code are included in the chapter ‘Criminals affecting the human body’.

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

The existing provisions on rape will be renumbered and the treatment of gang rape of minors will be brought into line with the Protection of Children from Sexual Offences (POCSO) Act, the documents said.

Further, the BNS has introduced age-based classification of rape victims, based on the IPC and POCSO, and prescribes different punishments for rape of minors below the age of 18, 16 and 12 years.

According to the explanatory memorandum, the range of punishments for rape of minors of different ages is largely the same in the IPC, POCSO and the BNS.

It was further stated that Section 64(1) punishes an accused of rape with 10 years to life imprisonment, while Section 64(2) punishes aggravated forms of rape with 10 years to life imprisonment for the remainder of one’s natural life.

Furthermore, Article 70(2) of the BNS introduces a ‘new offence’: gang rape of a woman under the age of 18.

This clause of the BNS merges sections 376DA and 376DB of the Criminal Code and removes age-related qualifications to consider gang rape of an underage female as an aggravated offence.

“This new offence proposes that gang rape of all minor females will be punishable with death or life imprisonment. The IPC currently provides this penalty option only for gang rape of a female below 12 years of age under section 376DB,” it said.

Another “significant change”, the explanatory memorandum said, is that the age at which a married woman can consent to rape (Article 63 BNS and Article 375 IPC) has been raised from 15 to 18.

“Exception 2 to Section 375 IPC provides that sexual intercourse between a man and his own wife, where the wife is not less than 15 years of age, does not amount to rape. The amendment to the age of consent seeks to give legislative effect to the Supreme Court judgment in Independent Thought v Union of India (2017), where the exception for marital rape was interpreted to permit sexual intercourse between a man and his minor wife above the age of 15 years,” the report said.

Article 63 of the BNS retains the exception for marital rape.

Some changes have been made for crimes against children.

“The newly added clause 95 of the BNS punishes a person who hires, employs or engages a person under the age of 18 to commit a crime.

“The punishment shall be the same as for the offence committed by the child, as if the offence had been committed by that child himself,” the report said.

The explanatory memorandum to Article 95 states that the use of a child for sexual exploitation or pornography also falls within its meaning.

Furthermore, Article 137 of the BNS proposes to make amendments to Article 361 of the IPC.

According to this article of the Criminal Code, the kidnapping of girls under the age of 18 and the kidnapping of boys under the age of 16 are punishable.

Article 135 of the BNS proposes to criminalize the abduction of all children under the age of 18, according to the official explanation.

First print: 03 Jul 2024 | 14:48 IST