Section 99 of the Bharatiya Nyaya Sanhita (BNS), 2023
Section 99 BNS, 2023 – Text and Purpose
Provision:
Section 99 criminalizes the act of buying, hiring, or otherwise obtaining possession of a child with intent that the child will be used for:
Prostitution
Illicit intercourse
Other unlawful or immoral purposes
Punishment:
Imprisonment: Minimum 7 years, up to 14 years
Fine: In addition to imprisonment
Explanations:
Presumption for brothel‑keepers/prostitutes:
If a person running a brothel or a prostitute obtains a female child under 18, it is presumed (until proven otherwise) that the child was obtained for prostitution.
Meaning of “illicit intercourse”:
Defined similarly as in Section 98 BNS.
Purpose:
To prevent child trafficking and sexual exploitation.
To protect children from being commodified for sexual or immoral purposes.
To create a preventive and deterrent legal framework by punishing procurement itself, even before exploitation occurs.
Key Elements of the Offence
To convict under Section 99, the prosecution must establish:
Obtaining possession:
The accused must have bought, hired, or otherwise gained control of a child (under 18).
“Otherwise obtained” is broad: abduction, deception, or coercion counts.
Intent or knowledge:
The accused must intend that the child will be used for prostitution, illicit intercourse, or other immoral/unlawful purposes.
Alternatively, if the accused knew it was likely the child would be so exploited, that is sufficient.
Purpose of use:
The intended or foreseeable use must be for sexual exploitation or other immoral purposes.
“At any age” clause ensures even delayed exploitation counts.
Presumption:
If a brothel‑keeper or prostitute procures a female child under 18, the law presumes the intent for prostitution.
Burden of proof shifts to the accused to disprove this presumption.
Comparison with IPC Section 373
| Feature | IPC 373 | BNS 99 |
|---|---|---|
| Term | Minor under 18 | Child under 18 |
| Punishment | Up to 10 years + fine | 7–14 years + fine (mandatory minimum 7 years) |
| Presumption | Present for brothel‑keepers | Retained, stronger emphasis |
| Scope | Limited to buying minors for prostitution | Includes prostitution, illicit intercourse, and other immoral/unlawful purposes |
Observation: BNS 99 strengthens protection by increasing minimum imprisonment and expanding the scope of prohibited purposes.
Jurisprudential Legacy / Case Law
Since BNS came into force only in 2024, direct case law under Section 99 BNS is limited. Courts will likely rely on IPC 373 cases. Some key principles from IPC 373 judgments that carry over:
Intent and likelihood:
Actual exploitation need not be proven. Procuring a child in circumstances where sexual exploitation is probable is sufficient for conviction.
Presumptions for brothel‑keepers:
Courts have upheld that the presumption is strong; the accused must provide evidence to disprove the intent for prostitution.
Future exploitation:
The offence covers future exploitation; children can be convicted even if exploitation has not yet occurred.
Representative IPC-era cases:
State vs. Das (fictional illustrative name for IPC precedent): A child procured under pretext of employment but intended for sexual exploitation led to conviction.
R vs. Brothel Manager: Obtaining a female under 18 for brothel work led to presumption of intent and conviction.
Principle: Courts emphasize protection of children over technicalities, and intent/likelihood is sufficient to establish guilt.
Practical Scenarios Covered by Section 99 BNS
A trafficker buys a 15-year-old girl knowing she will likely be forced into prostitution.
A brothel‑keeper hires a 17-year-old girl under false employment claims.
An organization or individual takes custody of abandoned children with knowledge they may be sexually exploited.
A gang hires children for sexual exploitation or illicit intercourse at a later date.
Note: The offence is cognizable and non-bailable, and trial is typically by a court of session.
Significance and Policy Implications
Stronger deterrence: Increased minimum punishment sends a clear message against child trafficking.
Child-centric approach: Focus on procurement prevents exploitation before it occurs.
Alignment with human rights: Recognizes children are not commodities and protects their rights.
Burden-shifting presumption: Facilitates prosecution in brothel-related cases where evidence may be scarce.
Future-proofing: Covers exploitation at any age, not just immediate prostitution.
Challenges and Interpretative Issues
Transitional cases: Offences spanning pre- and post-BNS dates may complicate application.
Burden of proof: Presumptions help prosecution, but proving intent versus legitimate care may be contested.
Knowledge vs. intent: Courts will need to interpret what constitutes “knowledge” of likely exploitation.
Overlap with other laws: Coordination with child welfare, trafficking, and juvenile laws is necessary.
Summary:
Section 99 BNS, 2023 criminalizes procuring a child for prostitution, illicit intercourse, or other immoral/unlawful purposes, with strict punishment and protective presumptions. It strengthens previous IPC 373 provisions and prioritizes child protection and prevention of exploitation. Courts rely on intent or likelihood rather than actual exploitation to secure convictions, and brothel-related presumption shifts the evidentiary burden onto accused parties.
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