The Unseen Captive

The Bharatiya Nyaya Sanhita, 2023 (BNS), marks a significant overhaul of India’s penal framework, replacing the colonial-era Indian Penal Code of 1860. Among its many reforms, the BNS revisits and modernises the legal provisions dealing with kidnapping, abduction, slavery, human trafficking, and forced labour, all of which are grave offences that strike at the very core of personal liberty, dignity and bodily autonomy. The provisions under the BNS not only retain the essence of the older law but also introduce nuanced definitions, stricter punishments, and enhanced protections especially for children and vulnerable persons.

What are the two kinds of kidnapping?

The two kinds of kidnapping are:

• Kidnapping from India, and
• Kidnapping from lawful guardianship.

What constitutes kidnapping from India?

A person is said to kidnap someone from India if they convey any person beyond the limits of India without the consent of that person or someone legally authorised to give consent on their behalf.

What constitutes kidnapping from lawful guardianship?

A person is said to kidnap a child or a person of unsound mind from lawful guardianship if they take or entice such person out of the keeping of their lawful guardian without the guardian’s consent.

What does the term lawful guardian include in the context of kidnapping from guardianship?

The term lawful guardian includes any person lawfully entrusted with the care or custody of the child or the person of unsound mind.

Is there any exception to the offence of kidnapping from lawful guardianship?

Yes. This does not apply to a person who, in good faith, believes himself to be the father of an illegitimate child or believes he is entitled to lawful custody of such child, unless the act is done for an immoral or unlawful purpose.

What is the punishment for kidnapping from India or from lawful guardianship?

The punishment is imprisonment of either description for a term that may extend to seven years and also fine.

What is meant by abduction?

A person abducts another if they compel that person by force or induce them by deceitful means to go from any place.

What is the punishment for kidnapping or obtaining custody of a child for the purpose of begging?

It is punishable with rigorous imprisonment of not less than ten years, which may extend to life imprisonment, along with fine.

What is the punishment for maiming a child to be used for begging?

The punishment is imprisonment of not less than twenty years, which may extend to imprisonment for the remainder of that person’s natural life, and also fine.

If a person, who is not the lawful guardian, uses a child for begging, what is presumed?

It is presumed, unless proved otherwise, that the person kidnapped or otherwise obtained custody of the child in order to use the child for begging.

What acts are considered as begging?

The following acts are considered begging:

• Soliciting or receiving alms in public places under pretence of singing, dancing, fortune-telling, performing tricks, selling items, etc.
• Entering private premises for soliciting or receiving alms.
• Exhibiting any sore, wound, deformity, disease of oneself, another person, or animal to obtain alms.
• Using a child as an exhibit to obtain alms.

What is the punishment for kidnapping or abducting someone to murder or put them in danger of being murdered?

The punishment is imprisonment for life or rigorous imprisonment up to ten years and fine.

Are there any examples of kidnapping or abducting in order to murder?

• If a person kidnaps someone intending that they be sacrificed to an idol.
• If someone forcibly carries a person away to be murdered.

What is the punishment for kidnapping or abducting to extort ransom or influence any act by threat of death or hurt?

The punishment is death or imprisonment for life and fine.

What is the punishment for kidnapping or abducting someone with the intent of secretly and wrongfully confining them?

The punishment is imprisonment of either description for up to seven years and fine.

What is the punishment for kidnapping or abducting someone to subject them to grievous hurt, slavery, or unnatural lust?

The punishment is imprisonment of either description for up to ten years and fine.

What is the offence relating to the importation of a girl or boy from a foreign country?

It is an offence to import into India any girl under twenty-one or any boy under eighteen with the intent or knowledge that they will be forced or seduced into illicit intercourse. The punishment is imprisonment up to ten years and fine.

What is the punishment for wrongfully concealing or confining a kidnapped or abducted person?

The person is punished in the same way as if they had committed the kidnapping or abduction with the same intention or purpose.

What acts amount to trafficking of a person?

Trafficking involves recruiting, transporting, harbouring, transferring, or receiving a person using:

• Threats
• Force or coercion
• Abduction
• Fraud or deception
• Abuse of power
• Inducement through payments or benefits to gain control

What does exploitation include in trafficking cases?

Exploitation includes physical or sexual exploitation, slavery, practices similar to slavery, servitude, beggary, or forced organ removal.

Is the consent of the victim relevant in determining whether trafficking occurred?

No, the victim’s consent is immaterial.

What is the punishment for trafficking a person?

The punishment is rigorous imprisonment of not less than seven years, extendable up to ten years, and fine.

What is the punishment for trafficking more than one person?

The punishment is rigorous imprisonment of not less than ten years, which may extend to life imprisonment, and fine.

What is the punishment for trafficking a child?

The punishment is rigorous imprisonment of not less than ten years, which may extend to life imprisonment, and fine.

What is the punishment for trafficking more than one child?

The punishment is rigorous imprisonment of not less than fourteen years, which may extend to life imprisonment, and fine.

What is the punishment for repeat offenders who traffic children?

They shall be punished with imprisonment for the remainder of their natural life and fine.

What is the punishment when a public servant or police officer is involved in trafficking?

The punishment is imprisonment for the remainder of their natural life and fine.

What is the punishment for exploiting a trafficked child for sexual purposes?

The punishment is rigorous imprisonment of not less than five years, extendable up to ten years, and fine.

What is the punishment for exploiting any trafficked person for sexual purposes?

The punishment is rigorous imprisonment of not less than three years, extendable up to seven years, and fine.

What is the punishment for habitual dealing in slaves?

The punishment is either imprisonment for life or imprisonment up to ten years and fine.

What is the punishment for unlawfully compelling someone to labour against their will?

The punishment is imprisonment up to one year or fine or both.

Therefore, the Bharatiya Nyaya Sanhita, 2023 represents a progressive shift in India’s criminal jurisprudence by expanding the scope and depth of offences relating to kidnapping, abduction, trafficking and forced labour. By codifying more stringent penalties and recognising contemporary forms of exploitation, the BNS strengthens the legal armour against crimes that degrade human dignity. The emphasis on child protection, victim rehabilitation, and accountability of public officials involved in such offences underscores the State’s commitment to upholding constitutional values. However, the effectiveness of these provisions will ultimately depend on vigilant enforcement, victim-sensitive policing and judicial responsiveness.

 Muneeb Rashid Malik is an Advocate.

He tweets @muneebmalikrash.