Our first two primers in the series on ‘Reimagining Crime and Punishment in India’ explored India’s view on crime, punishment, and its expectations from criminal laws. They also explored best practices from around the world to check overcriminalisation and guide prescription of punishments. This primer, third in the series, attempts to understand how India punishes. We do this by analysing punishments prescribed under the Bharatiya Nyaya Sanhita, 2023 (‘BNS’), now set to replace the Indian Penal Code, 1860 (‘IPC’), and under other special laws (‘SLs’) that cover a major part of India’s criminal law landscape.
This primer intends to provide an overview of punishments prescribed under Indian laws, delve into the nuances of each form of punishment, and identify inconsistencies in penal policy envisaged under the law.
Findings
Imprisonment
Despite being one of the most common forms of punishment globally, the imposition of imprisonment for crimes in India is riddled with inconsistencies and arbitrariness. While some offences of very different gravities are punishable by the same term of imprisonment, offences of the same gravity are often punishable with different terms. For instance, wrongfully restraining a person [Section 126, BNS] and applying for a conductor’s licence when disqualified to do so [Section 182, Motor Vehicles Act, 2019] are equally punishable with imprisonment of upto one month. On the other hand, selling and buying a minor child for the purpose of prostitution [Section 98, 99, BNS] are punishable with imprisonment upto 10 and 14 years respectively.
Furthermore, offences of incremental gravity, such as simpliciter rape as compared to aggravated rape, are subject to the same punishment. There are also inconsistencies in punishments for different stages of committing an offence. While some crimes have different punishments for preparation, attempt, and actual commission, others have the same punishment.
Life imprisonment
There are several inconsistencies in how the punishment of life imprisonment is employed. Generally, life imprisonment is prescribed for grave offences, such as murder, dowry death, rape of a minor, gang rape, terrorist acts, organised crimes etc. Compared to this, life imprisonment appears to be disproportionately high as a punishment for offences such as possessing counterfeit marked material [Section 342, BNS] or fraudulent cancellation of will [Section 343, BNS].
Additionally, life imprisonment is provided as an alternative punishment for offences punishable with a maximum imprisonment of 7 or 14 years. Therefore, the choice is often between two extremes – either a maximum imprisonment of 7 years, or life imprisonment. For instance, the offence of acts endangering sovereignty, unity and integrity of India [Section 152, BNS] is punishable with imprisonment for life or with imprisonment which may extend to 7 years.
There is also no discernible rationale for why life imprisonment is prescribed for some offences and not for others. Even as the BNS and other SLs prescribe maximum prison terms of 10, 14 or 20 years for various offences, these may not necessarily attract life imprisonment as an alternative. But several offences that attract a relatively shorter prison term of 3 or 7 years, attract life imprisonment in the alternative.
Furthermore, there is excessive judicial discretion owing to the massive range between the mandatory minimum punishment and life imprisonment. In the absence of uniform sentencing guidelines, such broad discretion can lead to arbitrariness.
Death penalty
Death penalty is prescribed only for the most serious and heinous offenses. While the fundamental question of whether the death penalty is a just and effective form of punishment remains unresolved, its application itself is often arbitrary. For most offences, the death penalty is provided as an alternative alongside imprisonment or life imprisonment. However, the extent of discretion in choosing between these punishments varies.
For instance, the offence of fabricating evidence that leads to the conviction and execution of an innocent person [Section 230(2), BNS] is punishable with minimum imprisonment of 10 years imprisonment to the death penalty. In contrast, for offenses such as murder, the discretion is more limited, with only life imprisonment or death as options.
Fines
The prescription of fines under BNS and other SLs is also notably inconsistent. While some offences such as acid attack [Section 124, BNS] and murder [Section 103, BNS] have fines as one of the prescribed punishments, other offences such as rape causing death or permanent vegetative state of the victim [Section 66, BNS] do not, with no discernible rationale for such differentiation.
For several offences, the range of fine amounts remains unspecified and without clear guidelines as to how the quantum of fine is to be judicially determined. Additionally, only some fines are restorative and rehabilitative, others are not. For instance, for the offence of rape of a woman under 16 or 12 years of age [Sections 65(1) and 65(2), BNS] and gang rape [Section 70(1), BNS] the fine is stipulated to be just and reasonable to meet the medical expenses of the victim while no such stipulation is made for other offences of similar nature such as aggravated rape [Section 64(2), BNS] and rape [Section 64(1), BNS].
In certain cases, the amount of fine imposed does not directly correspond to the severity of the offence. While some offences of varying seriousness are punishable with the same fine, some similar offences are punishable with different fines.
Community service
Community service, while introduced as a punishment for petty offences, is prescribed only for 6 offences. Except for the offence of theft [Section 303(2)], community service is provided as an alternative to either imprisonment and fine.
Section 229(1) of the BNSS defines petty offences as those punishable only by a fine not exceeding 5,000 rupees. By this definition, community service has not been provided as an alternative for several ‘petty offences’ under the BNS. For instance, community service has not been provided for the offence of public nuisance [Section 292, BNS] and for causing danger, obstruction or injury to any person in any public way [Section 285, BNS].
The path ahead: reimagining penal sanctions
Our analysis in this primer shows that the prescription of punishments under India’s criminal laws is arbitrary and rooted in colonial notions of crime and criminality. At the core of this remains an unprincipled approach to criminalisation, the absence of a rationalised structure for prescription of punishments, and an excessive reliance on incarceration. Lack of clearly defined expectations from and intended outcomes of punishments further exacerbates the problem.
Modern India’s criminal justice system needs to be rooted in notions of reform, rehabilitation and restitution. It must reevaluate its expectation from incarceration and limit its use to serious crimes that threaten the social and political order. Additionally, the criminal justice system should also elucidate the real purpose of punishments – outlining how they aim to transform convicts and facilitate reintegration into the society. To uphold a victim’s sense of justice and to become more restorative, the system must look beyond punitive measures.
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About the Authors
Aayush is a Project Fellow working at Vidhi, Delhi. His interest lies in the legal and structural design of public institutions - particularly the executive government and administrative agencies- with the objective of improving state capacity. He has advised Ministers, Parliamentarians, Legislative Assembly Members, bureaucrats and regulators on legal implications of executive proposals, litigation strategy relating to state policies, and questions around federal administration in India. Prior to joining Vidhi, Aayush worked as a Chief Minister’s Urban Leaders Fellow with the Government of Delhi, as a Law Clerk to a Supreme Court judge, and as a LAMP Fellow to a Member of Parliament in Lok Sabha. With combined experiences across the legislature, the executive, and the judiciary, Aayush's primary focus remains at the intersection of law and government structure. Aayush graduated from NALSAR, Hyderabad in 2018. He is a Madhubani artist with his own entrepreneurial venture, an un-trained but avid singer, enjoys cooking, and is an aspiring mixologist.
Ayushi is a Research Fellow in the Criminal Justice Reforms team at Vidhi. Prior to joining Vidhi, Ayushi worked at Nirma University as an Assistant Professor and National Forensic Sciences University, Gandhinagar as a Teaching and Research Associate. She has also worked with the Logistic Division, Ministry of Commerce and Industry, and advised on issues related to Maritime Regulatory Framework. Ayushi graduated from Rajiv Gandhi National University of Law, Punjab (RGNUL) in 2018 with a BA., LL. B (Hons.) and obtained her LLM degree in Constitutional and Administrative Laws from the Indian Law Institute, Delhi in 2019. She is currently pursuing her doctoral studies at National Law Institute University, Bhopal (NLIU) where her research is focused on violence against sexual minorities.
Naveed is Senior Resident Fellow and Lead with the Criminal Justice Team at Vidhi. His work focuses on decriminalisation of India's legislative landscape and reimagining India's approach towards Crime & Punishment. Previously, Naveed has worked on criminalisation of drug use and evaluated the government response to increasing violence against women. Naveed holds an undergraduate degree in law from National University of Law, Punjab and a Masters in Law from Tata Institute of Social Sciences, Mumbai.
