Bharatiya Nyaya Sanhita, 2023: Important New Offences and Enhanced Protection for Children
By Advocate Avichal Pandey, Allahabad High Court
The Bharatiya Nyaya Sanhita, 2023 (BNS) represents a significant restructuring of India's substantive criminal law. It came into force on 1 July 2024, replacing the Indian Penal Code, 1860, subject to the commencement notification and statutory exceptions. One important feature of the new law is the specific attention given to offences affecting children.
The BNS contains a dedicated group of provisions dealing with offences against children, while other provisions relating to sexual offences, trafficking, exploitation and offences against the human body can also apply where the victim is a child.
1. Who is a “Child” under the BNS?
Section 2(3) of the BNS defines “child” as any person below eighteen years of age. This provides a clear statutory age threshold for provisions in which the expression “child” is used.
The significance of this definition becomes particularly apparent in provisions dealing with sexual offences, trafficking and exploitation.
However, the BNS does not operate in isolation. Depending upon the facts of a case, legislation such as the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Juvenile Justice (Care and Protection of Children) Act, 2015 may also become relevant.
2. Section 95 BNS – Hiring or Engaging a Child to Commit an Offence
One of the notable provisions in the BNS is Section 95, which specifically criminalises hiring, employing or engaging a child to commit an offence.
A person who hires, employs or engages a child for committing an offence can face:-
●imprisonment of not less than three years;
●imprisonment which may extend to ten years; and
●fine.
Importantly, where the offence is actually committed, the person who engaged the child can additionally be punished with the punishment prescribed for that offence as if the offence had been committed by that person himself.
Sexual exploitation and pornography
The Explanation to Section 95 expressly provides that hiring, employing, engaging or using a child for sexual exploitation or pornography falls within the provision.
This provision is therefore particularly relevant in situations where an adult attempts to use a minor as an instrument for criminal activity.
3. Gang Rape of a Minor – Section 70(2) BNS
Section 70 deals with gang rape.
Under Section 70(2), where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each such person is deemed to have committed the offence of rape.
The punishment prescribed is:-
imprisonment for life, meaning imprisonment for the remainder of the person's natural life, and fine; or death.
The provision therefore expressly recognises the age of the victim as a significant factor in determining the punishment for gang rape.
It is important to distinguish this provision from Section 70(1), which deals generally with gang rape and prescribes a different punishment framework for adult victims.
4. Trafficking of Children – Section 143 BNS
Section 143 deals with trafficking of persons.
The offence may involve recruiting, transporting, harbouring, transferring or receiving a person for exploitation through methods such as:-
●threats;
●force or coercion;
●abduction;
●fraud or deception;
●abuse of power; or
●inducement involving payments or benefits.
The statutory definition of exploitation includes physical exploitation, sexual exploitation, slavery or practices similar to slavery, servitude, beggary and forced removal of organs.
Enhanced punishment where the victim is a child
Where trafficking involves a child, Section 143(4) provides for:-
●rigorous imprisonment of not less than ten years, which may extend to imprisonment for life, along with fine.
●Where more than one child is trafficked, Section 143(5) provides for rigorous imprisonment of not less than fourteen years, which may extend to imprisonment for life, along with fine.
The provision also states that the consent of the victim is immaterial for determining the offence of trafficking.
5. Sexual Exploitation of a Trafficked Child – Section 144
Section 144 creates a separate offence concerning exploitation of a trafficked person.
Where a person knowingly or having reason to believe that a child has been trafficked engages that child for sexual exploitation in any manner, the punishment is:-
●rigorous imprisonment of not less than five years;
●imprisonment which may extend to ten years; and
●fine.
This provision is particularly important because trafficking and subsequent exploitation can involve different persons and different stages of criminal conduct.
6. Other BNS Provisions Relevant to Children
The protection of children under the BNS is not confined to Sections 95, 70, 143 and 144.
The Sanhita contains a separate heading titled “Of offences against child”, covering Sections 93 to 99. These include:-
●Section 93 – Exposure and abandonment of a child under twelve years by a parent or person having care of the child;
●Section 94 – Concealment of birth by secret disposal of a dead body;
●Section 95 – Hiring, employing or engaging a child to commit an offence;
●Section 96 – Procuration of child;
●Section 97 – Kidnapping or abducting a child under ten years with intent to steal from the child's person;
●Section 98 – Selling a child for purposes of prostitution, etc.; and
●Section 99 – Buying a child for purposes of prostitution, etc.
These provisions demonstrate that the BNS approaches child-related criminality from several different angles, including abandonment, exploitation, kidnapping and sexual exploitation.
7. Relationship with the POCSO Act
An important practical point is that the BNS should not be read as replacing the POCSO Act.
The POCSO Act remains a specialised statute dealing with sexual offences against children. Consequently, where allegations concern sexual assault, sexual harassment or use of a child for pornographic purposes, the facts must be examined under the applicable provisions of the BNS as well as other special legislation wherever legally applicable.
For lawyers, investigating officers and courts, identifying the correct statutory provisions at the initial stage is therefore important.
8. Why Section 95 is Particularly Significant
Section 95 is noteworthy because it addresses not merely the person who physically commits the offence but also the person who uses a child as an instrument for criminal activity.
For example, if an adult deliberately recruits or employs a minor to participate in a criminal act, the adult may face liability under Section 95. If the underlying offence is actually committed, the statute additionally provides for punishment corresponding to that offence.
This makes the provision relevant to cases involving organised exploitation of vulnerable children.
Trafficking of Children – Section 143 BNS
Child trafficking frequently involves more than one stage—recruitment, transportation, concealment, transfer and eventual exploitation.
Section 143 addresses trafficking itself, while Section 144 addresses certain subsequent exploitation of trafficked persons. The BNS therefore provides separate statutory mechanisms for addressing different aspects of the criminal conduct.
In a criminal investigation, the precise role attributed to each accused person therefore becomes legally significant.
10. Importance for Investigation and Trial
In cases involving offences against children, investigation generally requires careful examination of:-
●the age of the child;
●identity and role of each accused;
●circumstances in which the child was recruited or transported;
●communications and electronic evidence;
●financial transactions;
●medical and forensic evidence where relevant;
●statements of the child and other witnesses;
●evidence concerning coercion, inducement, deception or abuse of power; and
●applicability of special statutes such as POCSO.
The exact evidentiary requirements will depend upon the offence alleged and the facts of the individual case.
11. A Note on the Infographic
The infographic accompanying this article highlights Section 95, Section 70(2), Sections 143–144 and the definition of “child.” These are important provisions, but one clarification is necessary for legal accuracy:
Section 143 is not itself titled “trafficking with beggary.” It defines trafficking and includes beggary within the statutory meaning of exploitation. Section 144 separately deals with exploitation of a trafficked person.
Similarly, Section 70(2) applies where a woman under eighteen years of age is subjected to gang rape; its punishment provision should be read directly from the statutory text.
12. Conclusion
The Bharatiya Nyaya Sanhita, 2023 introduces and reorganises several important criminal-law provisions concerning children. Section 95 specifically targets the use of children in criminal activities, while Section 70(2) provides a stringent punishment framework for gang rape of a woman below eighteen years. Sections 143 and 144 address trafficking and specified exploitation of trafficked children.
For effective legal protection, however, these provisions must be read alongside special legislation, procedural safeguards and the evidence applicable to each individual case.
Legal Disclaimer: This article is intended for general legal information and educational purposes. It should not be treated as a substitute for case-specific legal advice. The applicability of any provision depends upon the facts, evidence and applicable law in the particular matter.
About the Author
Advocate Avichal Pandey
Allahabad High Court
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