Punishments under BNS
General Principles of Punishment
The Bharatiya Nyaya Sanhita (BNS) defines various offences and also prescribes the punishments that may be imposed on individuals convicted of these offences. The system of punishment is guided by the underlying theories of punishment (retribution, deterrence, prevention, reform) and aims to achieve multiple objectives, including ensuring justice, protecting society, and promoting social order.
Purpose of Punishment (as per BNS):
While the BNS itself is primarily a substantive code defining crimes and penalties, the legislative intent and broader criminal justice philosophy indicate that punishment under BNS aims at:
Retribution: Ensuring that offenders receive punishment proportionate to the harm caused and their culpability.Deterrence: Discouraging both the offender (specific deterrence) and others (general deterrence) from committing similar crimes through the fear of consequences.Prevention/Incapacitation: Removing or limiting the offender's ability to cause future harm, particularly for dangerous offenders.Rehabilitation/Reform: Providing opportunities and interventions for offenders to change their behaviour and reintegrate into society (reflected in the introduction of community service and approach to attempt to suicide).Compensation/Restitution: While primarily dealt with under procedural law (BNSS) and other specific Acts, punishment like fine can be used to provide compensation to victims.
The BNS incorporates a range of punishments, allowing courts discretion to impose sentences that are appropriate to the specific offence, the circumstances of the case, and the offender, aiming to balance these various objectives.
Types of Punishments
Section 4 of the Bharatiya Nyaya Sanhita enumerates the types of punishments to which offenders are liable under the Sanhita. These are the legally recognised forms of penalties that courts can impose.
Provision (Section 4 BNS):
The punishments are:
Death: The most severe punishment, reserved for the gravest offences (e.g., murder under Section 101(c), waging war under Section 121, abetting suicide of a child or insane person under Section 107).Imprisonment for life: Also a severe punishment, implying imprisonment for the remainder of the convict's natural life unless the sentence is commuted or remitted by the appropriate government (Section 60 BNS clarifies this).Imprisonment, namely:- Rigorous: Imprisonment with hard labour.Simple: Imprisonment without hard labour.
The relevant section for each offence specifies whether the imprisonment shall be rigorous or simple, or of either description (leaving discretion to the court).
Forfeiture of property: Depriving the offender of their property as punishment. This is typically an additional punishment for certain offences.Fine: A monetary penalty imposed on the offender. Fine can be the sole punishment for some minor offences, or it can be imposed in addition to imprisonment. The amount of fine is usually specified as a maximum limit, leaving discretion to the court.Community service: Performing unpaid work for the benefit of the community. This is a new type of punishment introduced in the BNS, typically for minor offences.
Note: The BNS, like the IPC, does not include corporal punishment or transportation for life as types of punishment.
Imprisonment for Life
As listed above, Imprisonment for life is a distinct category of punishment. Section 60 of the BNS (similar to Section 57 of the IPC) clarifies that in calculating fractions of terms of imprisonment for the purpose of sentencing, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.
Imprisonment of Various Descriptions
Imprisonment can be either rigorous or simple. Rigorous imprisonment involves hard labour (e.g., manual work in prison), while simple imprisonment does not involve hard labour. The type of imprisonment is specified in the section defining the offence and its punishment.
Fine
Fine is a common punishment, either as the sole penalty or in addition to imprisonment. The BNS sections specify the maximum fine that can be imposed. Section 61 of the BNS (similar to Section 63 IPC) states that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. Section 62 BNS (similar to Section 64 IPC) provides for imprisonment in default of payment of fine.
Community Service (Section 4 BNS)
This is a significant new addition. Community service provides a non-custodial sentence for certain offences, focusing on the offender contributing positively to society. The specific offences for which community service is a prescribed punishment are listed in the sections defining those offences (e.g., some forms of theft or mischief below a certain value, public nuisance). The procedural law (BNSS) will likely provide details on how community service orders are managed and supervised.
These types of punishments provide courts with a range of options to impose sentences appropriate to the gravity of the offence and the circumstances of the case.
Specific Punishments for Various Offences
The BNS prescribes the specific punishment for each defined offence. While the types of punishments are limited to those listed in Section 4, the quantum (term of imprisonment, amount of fine) varies greatly depending on the seriousness of the crime.
Determination of Punishment:
For each offence, the relevant section in the BNS specifies the maximum punishment that can be imposed (e.g., imprisonment for a term which may extend to seven years, or with fine, or both). The sentencing court has the discretion to impose any punishment up to this maximum, taking into account various factors such as:
The
nature and gravity of the offence.The
culpability of the offender (Mens Rea).The
harm caused to the victim and society.Aggravating circumstances (factors that increase the seriousness of the crime, e.g., use of deadly weapon, multiplicity of victims, prior convictions).
Mitigating circumstances (factors that reduce the offender's blameworthiness or the seriousness of the crime, e.g., young age, first-time offender, provocation, remorse, potential for reform).
The BNS also provides for enhanced punishments for aggravated forms of offences (e.g., Voluntarily Causing Grievous Hurt is punished more severely than Simple Hurt; Robbery is punished more severely than Theft or Extortion; Gang Rape carries a higher penalty than individual rape). Some sections might also indicate specific minimum punishments for certain serious offences.
The judiciary plays a critical role in sentencing, applying the prescribed punishments while considering the specific facts of each case and the overall objectives of criminal justice.
Imprisonment for Life vs. Life Imprisonment
The terms "Imprisonment for life" and "Life imprisonment" are used interchangeably in the context of the BNS and Indian criminal law. There is no distinction between them in terms of duration.
Meaning:
As clarified by Section 60 of the BNS (similar to Section 57 IPC) and judicial interpretation,
The historical confusion arose from interpretations of the IPC, but it is now well-settled that a life sentence is for the convict's entire life unless commuted or remitted by the appropriate government under powers granted by the Constitution (Articles 72, 161) and procedural laws (BNSS, formerly CrPC).
The clarification in Section 60 of BNS that for calculation purposes, life imprisonment is reckoned as 20 years, is solely for the purpose of determining fractions of sentences in certain specific situations (e.g., calculating the term for rigorous imprisonment when a crime is punishable with imprisonment for life but a shorter term of rigorous imprisonment is prescribed).
Therefore, in substance, "Imprisonment for life" and "Life imprisonment" under the BNS refer to the same punishment – detention in prison for the duration of the convict's remaining life.
Solitary Confinement
Solitary confinement is a form of imprisonment where a prisoner is confined in isolation from other prisoners. While it can be part of a sentence or prison discipline, its application is restricted by law and judicial pronouncements due to its potentially harsh nature.
Provision (Section 67 BNS):
Section 67 of the BNS (similar to Section 73 of the IPC) deals with Solitary Confinement. It states that whenever an offender is sentenced to rigorous imprisonment for a term exceeding six months, the Court may by its sentence order that the offender shall, in addition to the rigorous imprisonment, be kept in solitary confinement for any portion of the rigorous imprisonment, in accordance with the scale laid down in the section.
The scale limits the maximum period of solitary confinement based on the term of rigorous imprisonment: not exceeding one month if the imprisonment is up to six months; not exceeding two months if the imprisonment is up to one year; not exceeding three months if the imprisonment exceeds one year.
Limitations:
Solitary confinement can only be ordered as an additional punishment when the sentence is
rigorous imprisonment for a term exceeding six months.The total period of solitary confinement
cannot exceed three months , irrespective of the length of the rigorous imprisonment.The period of solitary confinement must be served intermittently, not continuously. Section 68 BNS (similar to Section 74 IPC) limits the amount of solitary confinement at any one time to not exceed fourteen days, with intervals between periods of solitary confinement not less than the period of solitary confinement itself.
Judicial pronouncements have also imposed restrictions on solitary confinement, particularly noting its potential to violate fundamental rights (Article 21) if imposed arbitrarily or excessively. The courts emphasize that it should be used sparingly and in accordance with the strict requirements of the law.
Solitary confinement is a supplementary punishment and not one of the primary types of punishment listed in Section 4 BNS. It is a stringent measure that can be imposed in addition to rigorous imprisonment, subject to strict legal limits.
Procedural Aspects (Brief Overview linked to BNS)
Role of Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA)
While the Bharatiya Nyaya Sanhita (BNS) is the substantive criminal law defining offences and punishments, its implementation relies heavily on corresponding procedural and evidence laws. The recent criminal law reforms in India include the enactment of new laws governing these aspects as well.
Relationship between Substantive and Procedural Law:
Substantive criminal law (like BNS) defines what is a crime and the potential punishment. Procedural criminal law (like BNSS) lays down the process by which these crimes are investigated, offenders are apprehended, trials are conducted, and punishments are imposed. The law of evidence (like BSA) governs what constitutes admissible evidence and how it is to be presented and proved in court.
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023:
The BNSS replaces the Code of Criminal Procedure (CrPC), 1973. It governs the entire process from the registration of a First Information Report (FIR), investigation, arrest, bail, trial procedures (magisterial trials, sessions trials), appeals, revisions, and execution of sentences. Its provisions are directly linked to the offences and punishments defined in the BNS.
Example: When a crime defined under BNS (e.g., theft, murder) is reported, the investigation and trial will be conducted according to the procedures laid down in the BNSS. The BNSS specifies how arrests are to be made (linking to offences under BNS), how evidence is to be collected (following BSA), how charges are to be framed (for offences under BNS), how witnesses are to be examined, and how judgments and sentences (as per BNS) are to be pronounced and executed.
Bharatiya Sakshya Bill (BSB), 2023:
The BSB replaces the Indian Evidence Act, 1872. It governs the admissibility and relevance of facts and the modes of proof in legal proceedings, including criminal trials under the BNSS for offences defined in the BNS. It specifies what constitutes evidence, how oral and documentary evidence is to be presented and proved, the rules of relevancy, examination of witnesses, etc.
Example: In a trial for an offence under BNS (e.g., cheating), the evidence presented by the prosecution and defence (witness testimony, documents, electronic records) must comply with the rules laid down in the BSB. The BSB's provisions on relevancy of facts, burden of proof, presumptions, and admissibility of digital evidence directly impact how crimes under BNS are sought to be proved in court under BNSS procedures.
Thus, the BNS, BNSS, and BSB together form the interconnected legal framework for criminal justice in India. Offences defined and punished under BNS are investigated, tried, and proved according to the procedures laid down in BNSS and the rules of evidence in BSB.
Key Procedural Changes impacting BNS Offences
The BNSS introduces several key procedural changes compared to the old CrPC, which will impact how offences defined in the BNS are dealt with in practice. While a detailed analysis belongs to the study of BNSS, a brief overview of changes relevant to BNS offences is necessary.
Changes:
Digitization of Process: BNSS mandates the use of technology in various stages, including filing of FIRs electronically, digital maintenance of case diaries, electronic summons, and virtual court appearances. This aims to improve efficiency and transparency in handling BNS offences.Arrest and Investigation Procedures: BNSS includes detailed provisions regarding arrest, medical examination, and rights of the arrested person. It also specifies timelines for investigation for certain offences, aiming to expedite the process for BNS crimes.Timeline for Trial and Sentencing: BNSS introduces stricter timelines for various stages of the trial (e.g., filing of charge sheet, commencement of trial, judgment), intending to reduce delays in convicting or acquitting individuals charged with BNS offences. Sentencing guidelines might also be influenced by the BNSS provisions.Use of Technology in Evidence and Proceedings: BSB's explicit recognition and rules for admissibility of electronic and digital evidence are mirrored in BNSS procedures for its collection and presentation in court. BNSS also allows for recording of evidence through videoconferencing in certain cases.Summary Trials: BNSS modifies the criteria and procedures for summary trials (simplified and faster trials for minor offences), potentially allowing more BNS offences to be tried summarily.Compulsory Forensic Science Investigation: BNSS mandates forensic investigation for offences punishable with imprisonment of seven years or more, which are serious BNS offences. This aims to improve the quality of evidence in grave crimes.Rights of Victims: BNSS enhances the rights of victims in the criminal justice process, including providing them with information about the progress of investigation and case proceedings, and giving them a right to be heard in certain stages, particularly relevant for offences under BNS.
These procedural changes in BNSS are designed to create a more modern, efficient, and victim-centric criminal justice system for the enforcement of substantive criminal law defined by the BNS.
Magisterial Powers
The BNSS (replacing CrPC) governs the powers and jurisdiction of different classes of criminal courts, including Judicial Magistrates (First Class and Second Class) and Metropolitan Magistrates. These magistrates have the authority to try less serious offences defined in the BNS and commit more serious cases (triable by Sessions Court) for trial.
The sentencing powers of magistrates (maximum term of imprisonment and fine they can impose) are defined in the BNSS, and these powers are exercised when trying offences under the BNS falling within their jurisdiction.
Bail Provisions
The BNSS (replacing CrPC) contains detailed provisions regarding bail for individuals arrested for BNS offences. It classifies offences as bailable or non-bailable and lays down the conditions for granting bail by police officers and courts. The nature and severity of the offence under BNS are key factors determining whether it is bailable or non-bailable, and the amount of bail.
Summary Trials
BNSS provisions related to summary trials (replacing Chapter XXI of CrPC) define the types of offences that can be tried summarily and the simplified procedure to be followed. This allows for faster disposal of minor offences defined in the BNS, where the maximum punishment is relatively low. The BNSS may have expanded the list of offences triable summarily or changed the maximum sentence that can be awarded in a summary trial, impacting the trial process for certain BNS offences.
In conclusion, while BNS provides the definitions and punishments, the practical application of criminal law in India is a combined function of BNS, BNSS (Procedure), and BSB (Evidence), with BNSS introducing significant changes aimed at modernizing and expediting the criminal justice process.