This article is written by Mansi Mishra from GGSIPU DELHI.
The introduction of the Bharatiya Nyaya Sanhita (BNS) is considered one of the biggest reforms in India’s criminal justice system, in place of the colonial-era Indian Penal Code (IPC). The IPC was not intended to serve justice but only to keep the country under the rule of Britain. Nevertheless, new social beliefs, awareness of human rights, and advanced technology required the creation of a more modern system.
The BNS is an attempt at creating an updated version of criminal law that can be useful in modern society by applying reforms in the punishment system. Traditional types of punishments like death penalty and life imprisonment remain, however, community service becomes a type of rehabilitation punishment as well. The latter reflects the change of perspective towards criminal justice from punitive to proportional or rehabilitative and does not necessarily require incarceration anymore. Meanwhile, capital punishment is still relevant for the most dangerous crimes because of its deterrent effects.
This article will discuss the reforms in punishment according to BNS.
Understanding Punishment Under BNS
In terms of punishment, BNS, the Bharatiya Nyaya Sanhita has maintained the basic categories of punishment while changing the way they are applied and what types of punishment will apply to which type of crime.
The main kinds of punishments under the BNS are as follows:
- death penalty;
- life imprisonment;
- imprisonment (whether rigorous or simple);
- fine;
- order of forfeiture of property; and
- community service (newly introduced).
The addition of community service represents a shift in how punishment is viewed or considered, as it acknowledges that not every crime warrants imprisonment and that some crimes can be better addressed with other forms of sentencing.
Death Penalty: Retention with Judicial Restraint
The Doctrine of the Rarely Seen
The death penalty under the BNS remains available for heinous crimes such as terrorism and rape, resulting in death, as well as some aggravated crimes. However, its use is governed by the “rarest of rare” doctrine, which has been developed by the courts.
The “rarest of rare” doctrine means that the death penalty can only be imposed when the sentences of life imprisonment appear to be inadequate and when the crime shocks the collective conscience of society.
Changing Attitudes
Across the globe, there is a growing trend towards the abolition of the death penalty; however, India has chosen to take a middle-ground approach in that it will continue to have the death penalty in limited situations. The BNS allows the continuation of the death penalty in accordance with judicial standards but encourages the use of judicial discretion.
Debate and Criticism
Critics of the death penalty contend that it:
• Violates the right to life;
• Is irreversible if there is an incorrect conviction; and
• Does not deter crime.
Supporters, who believe that the death penalty should be given to the accused, believe that it provides a necessary deterrent to serious criminal behaviour.
Life Imprisonment and Fixed-Term Sentencing
Life sentences remain a part of the BNS. However, new provisions have been included providing for clearer guidelines in sentencing, giving Courts greater structure in their discretion to impose fixed-term sentences for specific offences, thereby eliminating ambiguity and ensuring that a proportional relationship exists between the crime and the sentence.
Additionally, the BNS introduces a mechanism to deal with the issue of indefinite incarceration by providing for clearer guidelines to assist Courts in determining what sentence should be imposed.
Community service is now recognized as a valid punishment and is one of the more progressive aspects of modern sentencing; by recognizing community service as an appropriate punishment, the BNS marks a significant departure from traditional reliance on imprisonment as the sole mode of criminal punishment.
Community Service may include:
(i) cleaning and maintaining public spaces
(ii) social work
(iii) participation in community welfare programs, and
(iv) participating in educational/awareness programs.
Generally, community service is imposed for minor offences, upon first-time offenders, and in instances where imprisonment would likely cause more harm than good.
The purpose of community service is to achieve multiple goals including reducing prison overcrowding, rehabilitating offenders, making offenders accountable, and providing society with benefits.
Community service is consistent with restorative justice which means that rather than just punishing an offender, community service aims to address the harm created by that offender’s actions. When an offender performs community service as a means of rehabilitation it assists in re-establishing them back into society and not in isolating them from society.
Change in Approach to Justice
In India, for many years, punishment was mainly about revenge, but with the introduction of the BNS, it is now about changing the way we think about punishing people. We also want to make sure that when we use punishment and rehabilitation together, they work together to make someone a better person after serving time.
Impact of Changes on Prisons
Prisons in India today are overcrowded and have no staff or space for all the prisoners. Using alternatives to prison as punishments, such as doing community service instead of serving time in prison, will help to reduce the number of people in prison, improve conditions for those who are serious offenders, give the prison system more resources to use in rehabilitating prisoners, and allow the prison system to improve rehabilitation programs.
Impact of Technology and Modern Offenses
The BNS has also looked at how technology affects crime and how it has developed new forms of crime (such as computer crimes). The changes will also ensure that punishment for these types of crimes will be appropriate and that there will be different ways of punishing those who have committed them than just doing time in prison. Some of these crimes may be punished with fines or other forms of community service rather than incarceration.
Case Laws
Bachan Singh v. State of Punjab (1980) – This landmark judgement found the Death Penalty constitutional but established the Rarest of Rare principle, providing guidance on capital punishment in India.
Machhi Singh v. State of Punjab (1983) – The court provided better detail on the criteria for executing death sentences, as it relates to the type of crime and how society reacts to a type of crime.
Mithu v. State of Punjab (1983) – The Supreme Court ruled that the mandatory death penalty was unconstitutional, and that the discretion of the judge is of utmost importance.
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) – The Court questioned how the Death Penalty was applied and suggested a principle based approach to how we enforce the Death Penalty.
Shatrughan Chauhan v. Union of India (2014) – The Court recognised that delays in dealing with Mercy Petitions could lead to the commute of a death sentence; thus, placing emphasis on human rights law.
The Death Penalty Around the World: A Worldwide Comparison
The overwhelming majority of countries do not utilize capital punishment (death penalty) anymore; likewise, some have also eliminated all forms of punishment including imprisonment and instead utilize rehabilitation as their main means of dealing with criminal offenders. One example of this is Norway, which has focused largely on rehabilitating all offenders regardless of the crime committed. This has produced a much lower rate of reoffending (recidivism) than most other countries.
India is trying to find a balance between:
• Using traditional methods of punishing offenders
• Using contemporary methods of punishing offenders (like the BNS legislative reforms) through rehabilitation.
Barriers to the Implementation of Reform
Although there is a great deal of promise in pursuing reformative justice under the BNS, successful implementation of reformation depends on the ability of the legal system to adequately implement these reforms.
Major Barriers to Successful Implementation of Reformation include:
• Inadequate infrastructure for community service programs
• Judiciary reluctance to implement alternative forms of sentencing
• Public tends to favour harsher punitive measures
• Need for mechanisms to monitor progress
Next Steps
The following are critical steps to ensure that reforms to punishment under the BNS are implemented successfully:
- Training of judges on alternative forms of sentencing
- Establishing structured community service programs
- Public education of the concept of reformation
- Strengthening and implementing systems for legal aid and rehabilitation.
Final remarks
The new Indian Nyaya Sanhita is a major step forward for India’s criminal justice system. The addition of community service and the improvement of traditional penalties indicate the way to a much more humane, balanced and effective system of justice.
The change from just using punishment to a reformative and restorative method represents a shift in values in Indian society. The death penalty continues to be part of our justice system, but we are now much more selective in its application, so that justice is served with compassion.
The success of BNS will ultimately depend on how it is implemented and how it is received by the community. If implemented well, the BNS will have the ability to transform the criminal justice system from one whose goal is simply to punish to one that will heal and reform as well.
Frequently Asked Questions
What is the objective of punishment reforms under BNS?
The reforms aim to modernise sentencing and promote proportional punishment.
Does BNS still provide for the death penalty?
Yes, the death penalty remains for certain grave offences.
What is community service under BNS?
It is a non-custodial punishment introduced for specific minor offences.
Why is community service considered significant?
It focuses on rehabilitation instead of only imprisonment.
How does BNS differ from IPC in sentencing?
BNS introduces updated punishments and broader reform-oriented approaches.
References
Law Commission of India Report No 262: The Death Penalty (2015)
