In the present time, considering the rising number of crimes against children, protecting them in our society has become a critical challenge. Children, being among the most vulnerable members of society, are often exploited for various criminal activities. To address this issue and provide better protection, BNS Section 95 : Hiring, Employing, or Engaging a Child to Commit an Offence has been introduced.
BNS Section 95 : Hiring, Employing, or Engaging a Child to Commit an Offence
95. Whoever hires, employs or engages any child to commit an offence shall be punished with imprisonment of either description which shall not be less than three years but which may extend to ten years, and with fine; and if the offence be committed shall also be punished with the punishment provided for that offence as if the offence has been committed by such person himself.
Explanation.—Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section.
BNS Section 95 : Hiring, Employing, or Engaging a Child to Commit an Offence : Explanation
1. If someone hires, employs, or involves a child (anyone below 18 years) to commit a crime, they will be liable under this section
2. If the Crime is Committed:
If the child actually commits the crime, the person who hired or engaged them will face the same punishment as if they committed the crime themselves.
3.Explanation:
This section also applies to anyone who uses a child for sexual exploitation or pornography, treating these as serious offences under the law.
Essential Ingredients of Section 95
To attract liability under Section 95, the following elements must be present:
1. The accused must have hired, employed, or engaged a child. A child, means a person below the age of 18 years.
2. The engagement must be for the purpose of committing an offence, even though the crime is not actually committed.
3. If the offence is committed, the offender is treated as if they themselves committed the offence, facing the prescribed punishment for that crime.
4. The Explanation to the section explicitly states that using a child for sexual exploitation or pornography falls within its ambit, ensuring a broader application of the law.
Punishment under Section 95
The punishment under Section 95 is severe, reflecting the serious nature of the offence: Penalty for hiring a minor for illegal activities
– Imprisonment: Not less than three years, which may extend to ten years.
– Fine: at the discretion of the court.
– Additional Punishment: If the child actually commits the offence, the person hiring or employing the child will also be punished for that specific offence as though they had committed it themselves.
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Illustrative Examples for better understanding of Section 95
1. Example 1:
A trafficker employs a 16-year-old boy to deliver illegal narcotics. Even if the child is caught and punished, the trafficker will face imprisonment under Section 95 for engaging the child, along with punishment for drug trafficking as if they personally committed the act.
2. Example 2:
A person coerces a 14-year-old girl into appearing in pornographic content. The offender will not only face imprisonment under Section 95 but also additional penalties under other relevant laws pertaining to sexual exploitation.
Particulars of the offence under Section 95 of the Bharatiya Nyaya Sanhita (BNS), 2023:
| Particulars | Details |
| Nature of Offence | Cognizable |
| Bailable or Not | Non-Bailable |
| Triable By | Sessions Court |
| Compoundability | Non-Compoundable |
Judicial Interpretation: Principle of parens patriae
What is the principle of parens patriae?
The Indian judiciary has consistently upheld the principle of parens patriae, treating the State as the guardian of all children. In cases involving child exploitation, courts have emphasized stringent enforcement of laws to serve as a deterrent.
Supreme Court’s Stand
The Hon’ble Supreme Court has repeatedly emphasized the vulnerability of children and the responsibility of the State and society to protect them from exploitation. It has ruled that even attempts to exploit a child for criminal purposes attract severe penalties.
Comparison with Previous Legal Framework
The Indian Penal Code (IPC), 1860, lacked a direct provision equivalent to Section 95 of the BNS. While specific laws like the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) addressed sexual exploitation, Section 95 broadens the scope by encompassing all criminal acts, thus filling the gap in the legislative framework.
Frequently Asked Questions (FAQs)
1. What is Section 95 of BNS?
Section 95 of the Bharatiya Nyaya Sanhita, 2023, describes crime that, if anyone hires, employs, or uses a child to commit a crime. The punishment includes imprisonment of 3 to 10 years and a fine. If the crime is committed, the offender also faces the same punishment as if they personally committed the crime. The section specifically covers acts of sexual exploitation and pornography involving children.
2 Who is considered a child under this section?
Any person below the age of 18 years is considered a child.
3. Is the offence under Section 95 cognizable?
Yes, it is a cognizable offence, meaning the police can arrest the offender without a warrant.
4. Is this offence bailable?
No, it is a non-bailable offence
5. What happens if the offence is not actually committed?
Even if the child does not commit the offence, the person who engaged them will still face imprisonment of 3 to 10 years and a fine.
6. Does this section apply to online offences involving children?
Yes, engaging a child in cybercrimes, including online pornography, falls within the scope of this provision.
7. What is the new section added in BNS?
The Bharatiya Nyaya Sanhita, 2023, has introduced several new provisions, including Section 95, which focuses on protecting children from criminal exploitation. This section ensures stricter penalties for those involving minors in criminal activities.
8. How many sections are there in BNS?
The Bharatiya Nyaya Sanhita, 2023, consists of 356 sections, replacing the Indian Penal Code (IPC), 1860. It includes updated and new provisions to address modern crimes and societal challenges more effectively.
9. What is Parens Patriae in the Constitution?
The principle of parens patriae is not explicitly mentioned in the Indian Constitution, but it is implied through various provisions. For example, under Article 39(f) of the Directive Principles of State Policy, the state is obligated to ensure that children are given opportunities and facilities to develop in a healthy manner, safeguarding their rights and interests. The judiciary has also invoked this doctrine to protect public welfare in several landmark cases.
10. What is the meaning of Patriae?
Patriae means “of the nation” or “of the country” in Latin. In the context of parens patriae, it signifies the state’s role as a guardian or caretaker for its citizens, especially the vulnerable ones.
11. What is New Child Safety Provisions in Bharatiya Nyaya Sanhita?
Section 95 of the Bharatiya Nyaya Sanhita (BNS), 2023, is a new provision aimed at protecting children from being hired, employed, or engaged in criminal activities, with strict punishments for offenders.
12. Criminal Laws for Child Safety in India
Key laws include the Bharatiya Nyaya Sanhita (BNS), 2023, Section 95, and the Protection of Children from Sexual Offences Act (POCSO), which criminalize child exploitation and ensure stringent penalties.
13. How many sections are in the Bharatiya Nyaya Sanhita 2023?
The Bharatiya Nyaya Sanhita, 2023, contains 356 sections.
14. Is Section 95 of BNS a bailable offence?
No, Section 95 of BNS is a non-bailable offence.
Conclusion
Section 95 of the Bharatiya Nyaya Sanhita, 2023, is designed to protect children from being exploited for criminal activities. It imposes strict punishments to deter people from taking advantage of a child’s innocence and vulnerability. This law highlights our responsibility—both legal and moral—to safeguard the rights and dignity of children, ensuring they are kept safe from harm and wrongdoer