Punishment under BNS

Punishment and Its Justification

Punishment is inflicted, that it is imposed by someone’s voluntary act: punishment is inflicted upon the criminal, or upon someone who is supposed to be answerable for him and for his wrongdoings.
 

Justification for Punishment

There are valid reasons for justification of punishment to offenders who are convicted of an offence. They may briefly be stated as follows:

1. Deterrence: Punishment dissuades a person from future wrongdoing by making punishment severe enough so that the benefit or pleasure derived from the offence is outweighed by the pain and probability of punishment.
2. Incapacitation: Incarceration confines the prisoner and physically incapacitates him from committing a crime. The most dangerous criminals may be sentenced to imprisonment for life or even death for heinous crimes such as murder.
3. Restoration: For some minor offences, punishment may take the form of restoration such as fines or payment of compensation to the victims or their families.
4. Rehabilitation: Some punishments are aimed at reforming the offender and ensuring rehabilitation as a law-abiding citizen. It aims to change the offender’s attitude and make him socially acceptable.
    

Theories of Punishment

Punishing criminals has been a recognised function of all civilised States for centuries. However, with the changing patterns of modern societies, the approach of penologists towards punishment has also undergone a radical change.
 

Deterrent Theory

Earlier modes of punishment were largely deterrent. This theory presupposes infliction of severe penalties to deter crimes. Jeremy Bentham, its founder, based his theory on hedonism – the idea that punishment must be swift, certain, and severe to be effective.

While deterrence aims to instill fear and prevent crimes, it often fails with hardened criminals or crimes committed impulsively. The failure of deterrence is evident when repeat offenders return to prison shortly after release.

Even public executions, intended as deterrents, did not prevent crimes from occurring during the executions themselves.
 

Retributive Theory

This theory treats punishment as an end in itself, rooted in the idea of retributive justice – “evil for evil.” It emphasizes vengeance and pain as a response to the pleasure derived by the criminal from his act.

As Immanuel Kant noted: “Judicial punishment can never be used merely as a means to promote some other good… it must in all cases be imposed on him only on the ground that he has committed a crime.”
 

Preventive Theory

This theory aims not to avenge, but to prevent crime. It is based on the social need to protect the community from anti-social acts. As Fichte observed, “The end of all penal laws is that they are not to be applied.”

The goal is to make the threat of punishment widely known rather than frequently executed. This theory discourages anti-social conduct and is seen as a more humane alternative to deterrence or retribution.
 

Reformative Theory

With modern advances in criminal science, the reformative theory emerged, advocating individualized treatment to rehabilitate offenders. It opposes corporal punishment and focuses on changing the offender’s attitude.

Correctional institutions should emphasize human treatment, and prisoners must be trained for reintegration into society. Parole and probation are recommended to help reclaim offenders.

This theory asserts that punishment should look to the future, not the past: “It should not be regarded as settling an old account but rather as opening a new one.”

Punishment refers to the imposition of a penalty or consequence upon a person who has been found guilty of violating a law.
 

Punishments

The punishments to which offenders are liable under the provisions of this Sanhita are:

• Death
• Imprisonment for life
• Imprisonment, which is of two descriptions:
  • Rigorous, that is, with hard labour
  • Simple
• Forfeiture of property
• Fine
• Community service
   

Explanation:

Section 4 of BNS corresponds to section 53 of IPC punishment, the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the transgression of a law or command). There are 6 types of punishments mentioned in this act:
 

Death penalty:
The death penalty is given for very heinous crimes or for very serious crimes, which affect the whole society. It is considered a deterrent and punitive measure. In the case Mukesh & Anr vs State (NCT of Delhi) & Ors (2017), i.e. Nirbhaya case, the court imposed the death penalty on the culprits.
 

Imprisonment for life:
In the case of Gopal Vinayak Godse vs State (1961), it was held that imprisonment for life means imprisonment which continues till the life of the convict. In Kartar Singh vs State (1982), the Supreme Court held that imprisonment for life is for the term of one’s life.
 

Imprisonment:
Under this section, imprisonment is divided into two categories:

• Rigorous imprisonment: Imprisonment associated with hard labour, including solitary confinement, for grave and heinous crimes.
• Simple imprisonment: Imprisonment without hard labour for less serious crimes.
   

This punishment involves various concepts such as:

• Simple imprisonment only: For less serious crimes.
• Minimum mandatory sentence: Some sections require the offender to serve a minimum period of imprisonment.
• Only imprisonment for life: Imprisonment for life as the sole punishment, sometimes with a fine.
• Minimum duration of imprisonment: Court can impose a term between the prescribed minimum and maximum durations.
   

Forfeiture of property:
Forfeiture means the loss of rights, property, or money as a result of legal violations. It involves seizure of the offender’s property. In Brijlal vs State (1983), it was held that confiscation of weapons of offence is not forfeiture of property.

Punishment for forfeiture of property is provided in BNS under the following sections:

• Section 155: Receiving property taken by war or depredation under sections 153 and 154.
• Section 186(2): Possession of stamp, die, plate, instrument, or materials for making any fictitious stamp.
• Section 203: Public servant unlawfully buying or bidding for property (uses the word “confiscated” instead of “forfeited”).
   

Other relevant BNSS provisions:

Objectionable publication (Section 98 of BNSS):

Empowers the State Government to declare certain publications forfeited and to issue search warrants for seizure. The police and magistrates can act upon such publications if they contain matter punishable under specific sections of BNS.

Proceeds of Crime (Section 107 of BNSS):

• Police can apply and magistrate can attach/seize property and recover proceeds of crime during investigation.
• Unclaimed proceeds of crime will be forfeited to the government through civil forfeiture.
   

Fine:
A fine is a monetary penalty imposed on a person for wrongdoing. It may be imposed alone or in conjunction with imprisonment or community service.
 

Community service:
This is a new concept under the Act. Community service is a non-paying job performed for the benefit of the community or its institutions. It is distinct from volunteering as it may be mandated by law. It is a reformatory measure decided by the Magistrate.
 

246th Report of the Parliamentary Standing Committee on Home Affairs:

The introduction of community service under class 4(f) of BNS was welcomed by all stakeholders. It aims to reduce the burden on prison infrastructure and offers a reformatory approach. However, the term and nature of community service has not been defined. The committee recommends defining and specifying the scope of community service as an alternative to incarceration.