Punishment’s Palette

The Bharatiya Nyaya Sanhita, 2023 (BNS) marks a significant reform in India’s criminal justice system, replacing the long-standing Indian Penal Code of 1860. Among its most important features is the redefinition and clarification of the punishments applicable to criminal offences. The BNS introduces a structured framework that reflects both traditional principles of deterrence and modern ideas of reformative justice. With punishments ranging from death and imprisonment to community service and fines, the BNS seeks to ensure proportionality, fairness, and transparency in sentencing.

What are the punishments to which offenders are liable under the provisions of the BNS?

The punishments are:

• Death;
• Imprisonment for life
• Imprisonment, which is of two descriptions: rigorous, i.e., with hard labour and simple;
• Forfeiture of property
• Fine
• Community Service

Can the appropriate Government commute a punishment without the consent of the offender?

Yes, the appropriate Government may commute any punishment under the BNS to any other punishment in accordance with the Bharatiya Nagarik Suraksha Sanhita, 2023, without the consent of the offender.

What does appropriate Government mean for the purposes of commutation of sentence?

In cases of a death sentence or offences against any law relating to a matter to which the executive power of the Union extends, it means the Central Government. In other cases, where the offence relates to a matter within the executive power of the State, it means the Government of the State within which the offender is sentenced.

How is life imprisonment treated when calculating fractions of punishment?

Imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided.

Does serving 13½ years in jail equate to undergoing a life sentence?

No, spending 13½ years in jail does not mean the death convict has undergone a life sentence. A sentence of life imprisonment means imprisonment for the entire life and not merely 14 years in jail. (Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737).

Can a sentence of imprisonment be partly rigorous and partly simple?

Yes, the Court may direct that imprisonment be wholly rigorous, wholly simple, or partly rigorous and partly simple, in cases where imprisonment of either description is allowed.

What is the limit of a fine where no maximum amount is specified?

The fine is unlimited but shall not be excessive.

How should courts impose fines where no maximum amount is specified?

Courts should ensure the fine is not excessive and must be guided by any specific stipulation of the law concerned. (Sharad Hiru Kolambe v. State of Maharashtra, (2018) 18 SCC 718).

In what cases can a court impose imprisonment in default of payment of fine?

Where the offence is punishable with imprisonment as well as fine, and the offender is sentenced to fine and where the offence is punishable with imprisonment or fine or only fine, and the offender is sentenced to fine.

How long can the imprisonment in default of payment of a fine be?

It shall not exceed one-fourth of the maximum term of imprisonment fixed for the offence.

What must Magistrates keep in mind while exercising the power to impose default imprisonment?

Magistrates must ensure their power is not exercised in contravention of the law. (Chhaju Lal v. State of Rajasthan, (1972) 3 SCC 411).

What kind of imprisonment may be imposed in default of fine or community service?

The imprisonment may be of any description to which the offender might have been sentenced.

If the offence is punishable only with fine or community service, what type and duration of default imprisonment may be imposed?

It shall be simple imprisonment and shall not exceed:

• Two months if fine does not exceed ₹5,000;
• Four months if fine does not exceed ₹10,000;
• One year in any other case.

When does imprisonment in default of fine terminate?

• When the fine is paid or levied;
• When a proportion of the fine is paid or levied such that the imprisonment already suffered is not less than the proportion of the unpaid fine.

Is there an illustration of how proportional payment affects default imprisonment?

• If A is fined ₹1,000 and sentenced to 4 months’ default imprisonment: If ₹750 is paid before 1 month ends, A is discharged after 1 month.
• If ₹750 is paid at the end of 1 month or later, A is immediately discharged.
• If ₹500 is paid before 2 months end, A is discharged after 2 months.
• If ₹500 is paid at the end of 2 months or later, A is immediately discharged.

How long may a fine be recovered?

The fine or unpaid portion may be levied anytime within six years after sentence. If the imprisonment term exceeds six years, then any time before its expiration. Death of the offender does not discharge the liability from their estate.

Can an offender be punished for multiple parts of a composite offence?

No, unless it is expressly provided, the offender shall not be punished for more than one offence when it is made up of parts that are themselves offences.

What happens when an act falls under multiple offence definitions?

The offender shall not be punished with a more severe punishment than the Court could award for any one of such offences.

• If A gives Z 50 strokes, he may be liable for causing hurt by the whole act and each stroke. However, he will be punished only once for the whole act.
• If A, while beating Z, strikes Y who intervenes, A is liable for one offence against Z and another distinct offence against Y.

How is punishment determined when it is doubtful which of several offences a person is guilty of?

The offender shall be punished for the offence for which the lowest punishment is provided, if punishments are not the same for all.

When can the Court order solitary confinement?

When a person is sentenced to rigorous imprisonment, the Court may order solitary confinement for any portion of the imprisonment, not exceeding three months in total.

What is the scale for ordering solitary confinement?

• Up to 1 month if imprisonment ≤ 6 months;
• Up to 2 months if imprisonment > 6 months and ≤ 1 year;
• Up to 3 months if imprisonment > 1 year.

What are the limits on the duration of solitary confinement?

• It shall not exceed 14 days at a time.
• There must be intervals between periods, not shorter than the periods themselves.
• If imprisonment exceeds 3 months, solitary confinement cannot exceed 7 days in any one month, with similar intervals.

When does enhanced punishment apply?

If a person previously convicted under Chapter X or XVII of the BNS (with imprisonment of 3 years or more) commits another offence under the same Chapters, they are subject to:

• Imprisonment for life; or
• Imprisonment of either description up to 10 years.

Therefore, the punishment provisions under the Bharatiya Nyaya Sanhita, 2023, represent a thoughtful approach to criminal justice in a modern democratic society. By incorporating both stringent and reformative measures, the BNS aims to address the seriousness of offences while also promoting rehabilitation where appropriate. Its provisions on commutation, solitary confinement, fine enforcement and enhanced punishment for repeat offenders underscore a careful balancing of justice and humanity. As the legal system transitions to the BNS, the proper and consistent application of these punishment provisions will be crucial in upholding public confidence and ensuring the effective delivery of justice.

 Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.