Bharatiya Nyaya Sanhita, 2023
Section 98
Selling child for purposes of prostitution, etc
Whoever sells, lets to hire, or otherwise disposes of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation 1.—When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. Explanation 2.—For the purposes of this section “illicit intercourse” means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi-marital relation.
Why this exists
This provision descends from Section 372 of the old Indian Penal Code, a colonial-era law enacted to curb the trafficking of children into brothels and forced prostitution, a serious social problem in 19th and 20th century India. It was carried forward, with modernized language, into the Bharatiya Nyaya Sanhita, 2023, as part of India's continuing effort to criminalize child trafficking and sexual exploitation, alongside other special laws like the Immoral Traffic (Prevention) Act and the POCSO Act.
How courts read it
Because this is a renumbered restatement of the earlier IPC provision (Section 372), no distinct landmark judgments interpreting this exact BNS section are yet widely reported. Under the predecessor provision, courts generally required the prosecution to show either a specific unlawful intent or knowledge that the child would likely be exploited, and treated the presumption in Explanation 1 as shifting the burden to the accused once it was shown that a girl under 18 was sold or given to a prostitute or brothel-keeper — the accused then had to prove an innocent purpose.
Common misconceptions
- Myth: This law only protects girls.
Fact: The main offence protects 'any child' regardless of gender; only the special presumption in Explanation 1 is limited to females under 18 sold to a prostitute or brothel-keeper. - Myth: The child must actually be used for prostitution for someone to be punished.
Fact: The law punishes the act of selling or disposing of the child with the required intent or knowledge — actual exploitation does not need to have already happened.