The legal framework in India is undergoing an important transformation with the implementation of the Bharatiya Nyaya Sanhita (BNS), 2023.

This new code, which replaces the historic Indian Penal Code (IPC), not only preserves many of the principles of traditional criminal law but also introduces several noteworthy modifications.

Among these changes, the categorization and conception of punishments have received significant attention.

In this article, we will explore the range of punishments provided under the BNS and examine how they are designed to ensure justice, deterrence, rehabilitation, and fairness in a rapidly evolving society.

Kinds of Punishments under the BNS

The BNS, enacted to modernize India’s criminal justice system, reflects the growing consensus that laws must be adapted to contemporary realities.

While the IPC, with its origins in the colonial era, had long been the bedrock of criminal jurisprudence in India, critics noted that it often fell short of providing equitable outcomes for both victims and offenders.

The BNS aims to address these deficiencies by offering a framework that is both progressive and effective.

One of the central elements of the BNS is its detailed taxonomy of punishments. Section 4 of the BNS lists the primary types of punishment, which include:

1. Death
2. Imprisonment for life
3. Imprisonment (with two distinct forms: rigorous and simple)
4. Forfeiture of property
5. Fine
6. Community service
7. Solitary Confinement

In addition to enumerating these punishments, the BNS also clarifies issues of sentencing flexibility, such as the commutation of sentences and how life imprisonment is quantified.

Each punishment is tailored with a dual purpose: to offer retribution for grave offenses while simultaneously acting as a deterrent to potential offenders.

#1 The Death Penalty

The death penalty, or capital punishment, occupies a unique position in the penal system. Under the BNS, it remains reserved for the “rarest of rare” cases.

This echoes the judicial doctrine historically nurtured by landmark cases such as Bachan Singh v. State of Punjab, which established that the death penalty should be imposed only in instances where the crime is extraordinarily egregious.

Under the BNS, the death penalty is prescribed for offenses that shock the collective conscience of society, such as certain types of murder, acts of terrorism, and other crimes where the perpetrator’s actions represent a profound disregard for human life and national security.

Importantly, the very inclusion of capital punishment is viewed not as a routine measure but as a deterrent to truly heinous crimes.

Judicial Discretion and Commutation

Recognizing the severity of imposing the death penalty, the BNS also provides for the commutation of sentences.

Section 5 details that the appropriate government (central or state, depending on jurisdiction) may commute a death sentence to a lesser punishment without the consent of the offender.

Jagmohan Singh v. State of Uttar Pradesh (1973)

In this case, the Supreme Court of India upheld the constitutionality of the death penalty. The Court ruled that the death sentence does not violate Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. The Court held that the imposition of the death penalty is permissible in cases of “rarest of rare” crimes. The judgment established that capital punishment could be awarded in exceptional cases, where the nature of the crime is particularly brutal, heinous, or cold-blooded. This case laid the foundation for the “rarest of rare” doctrine, emphasizing that the death penalty should not be imposed lightly and that the circumstances of each case must be carefully examined.

Bachan Singh v. State of Punjab (1980)

In the Bachan Singh case, the Supreme Court revisited the issue of the death penalty’s constitutionality and reaffirmed its validity under the Indian Constitution. The Court stressed that capital punishment is not inherently unconstitutional, but it must only be imposed in the “rarest of rare” cases. The judgment set out the guidelines for judges when deciding whether to impose the death penalty, focusing on the nature of the crime and the impact on society. The Court also emphasized the need to consider mitigating factors, such as the age, background, and mental condition of the accused. This case became a pivotal ruling, establishing a clearer framework for when the death penalty could be imposed and providing a benchmark for future cases.

Shivaji @ Shaikh v. State of Maharashtra (2018)

In this case, the Supreme Court commuted the death sentence of the accused, Shivaji, after considering various mitigating factors. The Court held that the crime committed by the accused did not meet the “rarest of rare” criteria and, therefore, the death penalty was not warranted. The judgment reaffirmed the need to consider individual circumstances of the accused, such as mental health issues, socio-economic background, and the possibility of rehabilitation. The Court emphasized that the death penalty should not be a mandatory or automatic sentence but should be imposed only after a comprehensive evaluation of all factors. This case highlighted the importance of personalized justice in capital punishment cases and demonstrated the Court’s more nuanced approach toward sentencing.

#2 Life Imprisonment

Life imprisonment under the BNS carries a deep symbolic meaning. Traditionally, a life sentence might be understood as confinement until the natural death of the convict.

However, the BNS clarifies that unless expressly stated otherwise, life imprisonment is to be calculated as equivalent to 20 years.

This provision is laid out in Section 6 and helps standardize sentencing while acknowledging that the concept of “life” can be interpreted in more flexible ways for different cases.

Section 6 Says,

In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided.

Judicial Nuances in Determining ‘Life’

Despite the equivalence to a specific term, courts sometimes pronounce life imprisonment as “till death” in instances where they deem that even a twenty-year sentence would be insufficient to deter particularly egregious behavior.

This dual interpretation allows for tailored sentencing that can evolve with the facts of a case, ensuring that punishment is proportional not only to the severity of the crime but also to the individual circumstances of the offender.

In the case of Santosh Kumar Singh v. State, popularly known as the Priyadarshini Mattoo case, the accused was initially acquitted by the trial court for the rape and murder of a law student. However, the Delhi High Court later convicted him and awarded the death sentence. On appeal, the Supreme Court upheld the conviction but commuted the death sentence to life imprisonment. The Court emphasized that life imprisonment must be understood to mean imprisonment for the remainder of the convict’s natural life unless properly remitted.

In the case of Govindaswamy v. State of Kerala, related to the Soumya murder case, the accused was convicted of rape and murder and sentenced to death by the trial and high courts. The Supreme Court, however, commuted the death sentence to life imprisonment, noting the lack of clear evidence proving intention to murder. The Court clarified that life imprisonment should be served for the convict’s entire natural life, reinforcing the evolving judicial approach that life sentences are not to be interpreted as merely 14 or 20 years unless explicitly stated.

In the case of B.A. Umesh v. Union of India, the convict had been on death row for over a decade following his conviction for rape and murder. The Supreme Court, taking into account the prolonged delay in execution and the inhuman conditions of solitary confinement, commuted his death sentence to life imprisonment. The judgment reiterated that life imprisonment implies rigorous imprisonment for the entire remaining span of the convict’s life, in line with current penal jurisprudence under the BNS framework.

#3 Imprisonment: Rigorous Versus Simple

The BNS distinguishes between two types of imprisonment: rigorous and simple. This differentiation reflects the need to consider the physical and moral implications of how a punishment is served, depending on the nature of the offense.

• Rigorous Imprisonment: Rigorous imprisonment involves hard labor. In such cases, the convict is not merely confined but is required to engage in physically demanding tasks. This form of punishment is typically reserved for offenses of a more serious nature, where the court believes that the imposition of additional hardship could serve as a deterrent or aid in the rehabilitation process by instilling discipline and work ethics.
• Simple Imprisonment: In contrast, simple imprisonment entails confinement without the imposition of hard labor. This form is generally considered appropriate for less severe offenses or when the goal is to protect society by removing an individual from public life without subjecting them to physically harsh conditions.

Court Discretion in Imprisonment Sentences

The BNS provides that it is at the discretion of the court to decide whether an offender’s term of imprisonment should be classified as rigorous, simple, or a combination of both.

This flexibility empowers judges to tailor the sentence in a way that considers the personal circumstances of the offender, the nature of the crime, and the overarching goal of rehabilitation.

It allows the legal system to strike a balance between punitive and rehabilitative justice.

#4 Forfeiture of Property

Forfeiture of property is a punishment intended to deprive an offender of the assets that were either used in the commission of a crime or obtained through criminal conduct.

This form of punishment serves multiple purposes: it acts as a deterrent by removing the financial incentives for criminal activity and serves as a form of restitution by ensuring that criminals are not able to profit from their wrongdoing.

Application under the BNS

Under Section 4(d) of the BNS, forfeiture is clearly stipulated as one of the punishments. By imposing forfeiture, the legal system effectively sends a message that material gain derived from criminal activities is not only illegal but will be forcibly retracted by the state.

This not only punishes the offender but also contributes to disrupting criminal enterprises that rely on financial incentives.

#5 Fines: Monetary Sanctions with a Determined Scale

Fines represent one of the most frequently applied forms of punishment under the BNS. They function as a flexible tool in sentencing, providing a monetary penalty that can either stand alone or accompany other forms of punishment, such as imprisonment.

The primary aim of a fine is to impose a financial burden on the offender, thereby discouraging future criminal behavior and serving as a punitive measure without the need for incarceration.

Section 8: Rules in Fining

The BNS outlines several important aspects regarding fines in Section 4(e) and further clarifies their implementation in Section 8.

Notably, if a specific fine amount is not defined by the statute, the court has the discretion to impose a fine that is unlimited but must be “not excessive.”

Unlimited Fine – But Not Excessive:

If the law doesn’t specify a maximum amount for a fine, the court can decide the amount. However, it must be reasonable and not too harsh.

When a Court Can Add Jail for Non-Payment of Fine:

If someone is punished with:

• Imprisonment and fine, or
• Imprisonment or fine, or
• Fine only,

If they don’t pay the fine, the court can order additional imprisonment (on top of any jail time already given) for not paying.

Maximum Jail Time for Not Paying the Fine:

• If the crime is punishable with both jail and a fine, the extra jail time for not paying the fine can’t be more than 1/4th of the maximum jail sentence allowed for that crime.
• The type of jail (simple or rigorous) can be the same as what was allowed for the original crime.

If the Crime Is Punishable with Only a Fine or Community Service:

The jail time for not paying must be simple imprisonment only.

Maximum jail time allowed in such cases:

• Up to 2 months if fine is ₹5,000 or less
• Up to 4 months if fine is ₹10,000 or less
• Up to 1 year in any other case

Jail Ends When Fine Is Paid or Collected:

• If the person pays the fine (or part of it), or it is collected from their property, the jail term ends.
• Even if only part of the fine is paid, the person may be released early based on how much is paid.

Example:

If someone is fined ₹1,000 and sentenced to 4 months of jail if they don’t pay:

• If they pay ₹750 before or after 1 month, they can be released after completing just 1 month.
• If they pay ₹500 before 2 months, they are released after 2 months.
• Paying the amount anytime during the sentence helps in early release.

Collecting Unpaid Fine Later:

• The government can try to collect the unpaid fine up to 6 years after the sentence.
• If the person is sentenced to jail for more than 6 years, the fine can be collected anytime before the jail term ends.

#6 Community Service

Among the significant innovations introduced by the BNS is the inclusion of community service as a form of punishment. While the traditional IPC offers five types of punishments, the BNS expands this list by incorporating community service as the sixth category.

This addition reflects a paradigm shift and an acknowledgement that punitive measures should also have a rehabilitative and restorative element.

Community service under the BNS is primarily envisaged for lesser offenses and for cases where a conventional incarceration might be excessive or counterproductive.

By requiring offenders to contribute positively to society, community service works on two fronts: it instills a sense of responsibility in the offender while concurrently addressing the social harm caused by the crime.

In the case of Ajin K V vs State of Kerala, the petitioner challenged the bail conditions imposed by the Judicial Magistrate in connection with alleged offences under Sections 75(1)(ii)(iii), 78(1)(ii), 79, and 351(2) of the Bharatiya Nyaya Sanhita (BNS). Specifically, the petitioner objected to three conditions: (1) reporting to the local police station twice weekly, (2) undergoing counselling, and (5) performing community service at a government hospital.

The Kerala High Court, presided over by Justice C. Jayachandran, ruled that community service is classified as a punishment under Section 4(f) of the BNS, and thus cannot be imposed as a bail condition. Consequently, the Court struck down this condition. The Court also modified the reporting requirement from twice a week to once weekly on Saturdays for a reduced period of two months, and thereafter only upon written request by the Investigating Officer. Lastly, the Court found the counselling condition unnecessary given the nature of the offence and also dispensed with it.

Benefits and Challenges of Community Service

The rehabilitative potential of community service is significant. It provides an opportunity for offenders to learn new skills, repay the community, and reintegrate into society in a meaningful way.

However, the introduction of community service is not without challenges. The legislation leaves certain aspects, such as the specific guidelines for implementation and the range of offenses for which community service is appropriate, open to judicial interpretation.

This may lead to variations in how community service is applied across different jurisdictions.

Nonetheless, the inclusion of community service is an important step towards a more humane criminal justice system, one that looks beyond retribution and focuses on societal healing.

It encourages offenders to take direct responsibility for their actions and offers them a chance to contribute productively to the community.

#7 Solitary Confinement

Solitary confinement is a form of punishment where a prisoner is kept alone, away from other inmates, as part of their sentence.

Under the Bharatiya Nyaya Sanhita (BNS), courts can order solitary confinement only when a person is sentenced to rigorous imprisonment, and even then, strict limits are set to prevent abuse and ensure humane treatment.

The law controls how long and how often such isolation can be used during a prison term.

Section 11 – Solitary Confinement

• If someone is convicted of a crime and the court gives them rigorous imprisonment, the court can also order solitary confinement for part of that sentence. But there are limits:
• If the total jail term is up to 6 months, solitary confinement can’t be more than 1 month.
• If the jail term is more than 6 months but up to 1 year, solitary confinement can’t be more than 2 months.
• If the jail term is more than 1 year, solitary confinement can’t be more than 3 months.

Section 12 – Limits on How Solitary Confinement Is Given

Even if solitary confinement is allowed:

• It cannot last more than 14 days at a time.
• There must be a break at least as long as the solitary period between two sessions (e.g., if solitary is 7 days, the break must also be at least 7 days).
• If the total jail term is more than 3 months, solitary confinement can’t be more than 7 days in any one month—and again, breaks between each solitary period must be just as long.

In the case of Sunil Batra v. Delhi Administration (1978), the Supreme Court delivered a seminal judgment on the issue of solitary confinement and the rights of prisoners. The petitioner, Sunil Batra, a convict on death row, challenged the inhumane practice of placing prisoners in solitary confinement without proper legal sanction. The Court held that solitary confinement, if imposed without statutory authority and due process, violates Articles 14, 19, and 21 of the Constitution. Justice V.R. Krishna Iyer emphasized that prisoners, though deprived of personal liberty, are not denuded of all fundamental rights, and that the treatment meted out to them must be humane and just.

In the case of Prem Chand v. Union of India (1981), the Supreme Court addressed the custodial harassment of a prisoner who was subjected to solitary confinement and cruel treatment without any lawful basis. The Court reiterated the importance of protecting prisoners from arbitrary and unjust practices. It was held that solitary confinement, as a form of punishment or preventive measure, must adhere strictly to constitutional safeguards and legal procedures. The Court condemned the practice of keeping prisoners in isolation simply at the whims of jail authorities.

In the case of Ajay Sharma v. Union of India (2017), the Supreme Court once again scrutinized the use of solitary confinement, particularly in the context of undertrial prisoners and convicts awaiting a decision on mercy petitions. The Court observed that prolonged solitary confinement without sufficient justification constitutes mental torture and is violative of Article 21. It emphasized that even death row convicts have the right to dignity and must not be subjected to excessive and arbitrary isolation, thereby reinforcing the jurisprudence laid down in earlier decisions.

Additional Aspects: Commutation and Sentencing Fractions

Commutation of Sentences

Section 5 of the BNS empowers the appropriate government to commute any punishment to a lesser one without the consent of the offender.

This provision is a critical check within the system, allowing for executive clemency and adapting harsh sentences to circumstances where remedial intervention might be more appropriate.

The power to commute a sentence underscores the principle that no punishment should be immutable, especially in cases where a reevaluation of the facts or remorse shown by the offender warrants leniency.

Calculation of Sentencing Fractions

Section 6 of the BNS provides clarity on how to calculate fractions of imprisonment terms. Under this provision, if an offender is sentenced to life imprisonment, it is treated as equivalent to a fixed term (usually 20 years) unless stated otherwise.

This standardization aids in ensuring consistency in sentencing, preventing discrepancies that might arise from vague interpretations of “life.”

Verdict

The Bharatiya Nyaya Sanhita, 2023, marks a transformative moment in India’s approach to criminal justice.

By clearly enumerating and defining the range of punishments from the solemn finality of the death penalty to the restorative ethos of community service, the BNS sets forth a system that is both multifaceted and adaptable. T

he punishments under the BNS are not intended merely to exact retribution; rather, they are structured to serve several vital functions:

• Deterrence: Severe punishments such as the death penalty and life imprisonment underscore the state’s resolve to discourage the most heinous crimes.
• Rehabilitation: Community service and scaled fines offer alternative ways to correct behavior without resorting to excessive incarceration.
• Restitution: Forfeiture of property ensures that criminals do not financially benefit from their crimes, thereby cutting off economic incentives.
• Flexibility: Judicial discretion and the possibility for sentence commutation help tailor punishments to the specifics of each case, ensuring fairness.

Legal experts, scholars, and practitioners will continue to debate and refine these provisions in the years to come. What remains clear is that the new code paves the way for a justice system that does not view punishment as an end in itself but as a means to safeguard public order, facilitate the rehabilitation of offenders, and ultimately create a safer, more just society.

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