Criminalization of Child Exploitation in Criminal Activities: A Critical Analysis of Section 95 of the Bharatiya Nyaya Sanhita

I. Introduction

The Bharatiya Nyaya Sanhita, 2023 (hereinafter “BNS”), poised to supersede the Indian Penal Code, 1860 (hereinafter “IPC”), introduces a novel provision of significant import in the realm of child protection and criminal law. Section 95 of the BNS criminalizes the act of hiring, employing, engaging, or using a child for the commission of offenses, including but not limited to sexual exploitation and pornography. This article presents a comprehensive legal analysis of this new statutory provision, examining its substantive content, procedural implications, and its position within the broader framework of Indian criminal jurisprudence and child protection legislation.

II. Legislative Background and Rationale

A. Lacunae in the Existing Legal Framework

The IPC, despite its numerous amendments over the years, exhibited a notable lacuna in its failure to specifically address the exploitation of minors in the commission of criminal offenses. While various provisions, such as Section 82 (dealing with the act of a child under seven years of age) and Section 370 (trafficking of persons) of the IPC, tangentially addressed aspects of child involvement in crime, there existed no explicit provision criminalizing the act of employing a child for criminal purposes.

B. Legislative Intent and Policy Considerations

The introduction of Section 95 in the BNS reflects a paradigm shift in the legislative approach to child protection within the criminal justice system. The provision appears to be predicated on the following policy considerations:

1. Implementation of the principle of parens patriae, wherein the state assumes the role of ultimate guardian of children’s interests.

2. Fulfillment of India’s obligations under international instruments, particularly Article 32 of the United Nations Convention on the Rights of the Child, which mandates protection of children from economic exploitation and hazardous work.

3. Recognition of the unique vulnerability of children to criminal exploitation, as elucidated in various Supreme Court judgments, including Gaurav Jain v. Union of India [(1997) 8 SCC 114].

4. Addressing the growing concern of organized crime syndicates exploiting minors, as highlighted in reports by the National Crime Records Bureau.

III. Substantive Analysis of Section 95 BNS

A. Elements of the Offense

Section 95 of the BNS creates a new statutory offense with the following essential elements:

1. **Actus Reus**: The physical element comprises hiring, employing, engaging, or using a child. These terms, being in the disjunctive, suggest a wide ambit of prohibited conduct.

2. **Mens Rea**: While not explicitly stated, the provision likely requires dolus directus (direct intent) regarding the employment of the child and at least dolus eventualis (oblique intent) concerning the commission of the underlying offense.

3. **Subject of the Offense**: The provision specifically pertains to a “child,” which, in the absence of a definition in the BNS, may be interpreted in light of Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015, defining a child as any person below the age of eighteen years.

4. **Object of the Offense**: The child must be employed “for committing any offense,” which extends the scope beyond merely sexual offenses to encompass the entire spectrum of criminal activities.

B. Scope and Applicability

The provision’s language, “as if such person himself has committed the offense,” invokes the principle of constructive liability. This creates a legal fiction whereby the person employing the child is deemed to have committed the underlying offense personally. This construction significantly expands the scope of criminal liability and may have far-reaching implications in terms of sentencing and the application of other penal provisions.

 IV. Procedural and Evidentiary Considerations

 A. Burden and Standard of Proof

As a criminal provision, the prosecution bears the burden of proving all elements of the offense beyond reasonable doubt, as per the principle established in Woolmington v DPP [1935] UKHL 1. However, given the constructive nature of liability, once the basic facts of child employment for criminal purposes are established, the burden may shift to the accused to rebut the presumption of committing the underlying offense.

B. Evidentiary Challenges

Several evidentiary issues may arise in the prosecution of offenses under Section 95 BNS:

1. **Proof of Age**: Establishing the victim’s status as a “child” may require reliance on documentary evidence such as birth certificates, or medical evidence as outlined in Jarnail Singh v. State of Haryana (2013) 7 SCC 263.

2. **Establishing the Purpose**: Proving that the child was specifically employed “for committing any offense” may require circumstantial evidence and inferences drawn from the totality of circumstances.

3. **Child Testimony**: The admissibility and reliability of child testimony will be crucial, necessitating adherence to guidelines laid down in State of Maharashtra v. Bandu @ Daulat (2018) 11 SCC 163, regarding child witnesses.

VI. Potential Constitutional Challenges

The provision may face constitutional scrutiny on the following grounds:

1. **Article 14 (Right to Equality)**: The constructive liability aspect might be challenged as creating an unreasonable classification between those who employ children for criminal activities and those who do not.

2. **Article 21 (Right to Life and Personal Liberty)**: The broad scope of the provision might be contested as potentially violative of the principle of proportionality in criminal sentencing.

VII. Judicial Interpretation and Future Directions

As this provision comes into force, its interpretation and application by the judiciary will be crucial. Courts may need to:

1. Develop tests for establishing the requisite mens rea for the offense.

2. Clarify the extent of constructive liability, particularly in cases where the underlying offense carries severe penalties such as life imprisonment.

3. Establish guidelines for sentencing, considering the unique nature of this offense.

VIII. Conclusion

Section 95 of the Bharatiya Nyaya Sanhita represents a significant legislative intervention in the domain of child protection and criminal law. While it addresses a critical gap in the existing legal framework, its effectiveness will largely depend on its judicial interpretation and practical implementation. As cases begin to be prosecuted under this new provision, it will be imperative for the legal fraternity to closely monitor its application, impact, and any unintended consequences that may arise. The provision’s interaction with existing child protection laws and its alignment with constitutional principles will likely be subjects of extensive legal discourse in the coming years.