Chapter 2 – Punishments 

1. INTRODUCTION 

One of the constituent elements of our Criminal Justice System is Punishment. The very remedy of a criminal matter in the eye of the law is imposing Penal Liability or Punishment  upon the offender. Punishing offenders for their wrongdoings has been the norm since time  immemorial and is still a relevant way of remedy in the criminal adjudication field. In ancient  or medieval times, the type of punishment was cruel, brutal, and harsh. Loss of life or limbs  was fairly common. But as society set out to follow the path of rationality, modernity, and  logical reasoning, and as the concept of Human Rights was integrated into our Criminal Justice  System, the type of punishment also changed. From subjecting convicts to the most brutal  punishments, to taking an initiative to reform them so they can get a second chance at life and  get back into society to be a useful citizen, the evolution of punishment is something that holds  great significance in the history of the Criminal Justice System. In the following points, various  theories of Punishment, various types of Punishment under the Bhartiya Nyaya Sanhita 2023  will be discussed in detail. 

2. THEORIES OF PUNISHMENT 

As mentioned earlier, the type of punishment inflicted upon the offenders has seen a dynamic  evolution throughout the years. Jurists and legal experts have classified this evolution of  punishment into several theories of punishment, each focusing on the type and severity of the  punishment. The various theories of punishment are: 

2.1 Deterrent Theory 

The word ‘deterrent’ literally means ‘a thing that discourages or is intended  to discourage someone from doing something.’ So, from this, it can be said that the main  purpose of the deterrent theory of punishment is to prevent the criminal from committing the  offence ever again. This type of Punishment is not only for the offender, but also sets an  example to the general public so that future crimes do not occur.

2.2 Retributive Theory 

The Retributive theory of punishment focuses mainly on ‘retribution’, which means vengeance.  The object of this type of punishment is to make the offender realize the suffering of the  aggrieved party by inflicting the same kind of pain that was inflicted on the victim. This theory  is based on revenge, rather than social welfare.  

2.3 Preventive Theory 

The evolution of punishments is as clear as day in this theory of punishment. In the Preventive  theory of punishment, keeping the offender in isolation is said to be the best way to prevent  crime from happening. The idea is to keep the criminal away from society. Examples of this  type of punishment can be Imprisonment, Solitary Confinement, etc. 

2.4 Reformative Theory 

In modern society, with the advancement of laws and human rights, not only the victim’s but  also the offender’s rights are a matter of great concern. Thus, in this era, a new theory of  punishment is more prevalent than any other theories mentioned above. The idea of  Reformative theory is to reform the offenders through individual treatment. Treat the criminal  like a diseased patient, this is the main motto of the Reformative theory of punishment. The  supporters of this theory argue that personalized treatment can turn them into law-abiding  persons again and can be integrated into society again. 

3. TYPES OF PUNISHMENT 

In Criminal Law, remedy is usually sought through the way of punishment of the wrongdoer.  For this, the Bhartiya Nyaya Sanhita, 2023 provides a provision listing all the types of  punishment which are mentioned throughout various sections of the Bhartiya Nyaya Sanhita,  2023. These punishments are categorized based on their severity under Section 4 of the Sanhita.  All the punishments listed under Section 4 are discussed in the following points: 

3.1 Death 

There are several controversies surrounding the legality of Death punishment or Capital  Punishment. Some countries have abolished Death Punishment altogether, while India still has  the system of Capital Punishment by the way of hanging the offender to death. Though  available, actually giving a death sentence is not so easy in India and there is a historical context 

for such complexity in the way of giving capital punishment to offenders. In 1980, in the case  of Bacchan Singh v. State of Punjab, the ‘rarest of rare’ doctrine was established which says  that the death penalty should be given only in the rarest of rare cases.1 While giving death  penalty, the judge has to look into the crime as well as the criminal. A sentence of Death can  be commuted by the appropriate government under Section 5(a) of the Sanhita. 

The court established specific standards in the Machhi Singh v. State of Punjab case to  determine when a case can qualify as rarest to rarest. Below is an analysis of the criteria2: 1. Method of murder: When a murder is carried out in such a gruesome and brutal,  absurd, demonic, disobedient, or repugnant way to provoke strong and widespread community  indignation; for instance,  

– When the victim’s home is set on fire with the goal of baking her alive.  – When the victim dies as a result of torture for cruel and inhumane acts. – When the victim’s body is brutally dismembered or sliced into fragments. 

2. Murder motivation: When a murder is meant to be a complete act of depravity and cruelty. For instance, A cold-blooded murder with a calculated plan to seize property or achieve another  objective. 
3. The socially terrible nature of crime: When someone from a lower socioeconomic status is  killed.  

This also includes instances of bride burning, sometimes referred to as dowry death. 4. The severity of the crime – When there are numerous murders or other situations. 

5. Characteristics of the Murder Victim: When the murder victim is a prominent figure, an  innocent kid, an elderly or disabled lady or person, etc. 

3.2 Imprisonment for Life 

Another type of punishment listed in the Sanhita is Life Imprisonment. According to Section 6  of the Sanhita, unless the context provides otherwise, a sentence for imprisonment for life  cannot exceed twenty years. A sentence of Life Imprisonment can be commuted by the  appropriate government under Section 5(b) of the Sanhita, keeping in mind that it does not  exceed fourteen years. 

1. Bachan Singh v. State of Punjab, AIR 1980 SC 898 
2. Machhi Singh v. State of Punjab, AIR 1983 3 SCC 470

3.3 Imprisonment 

Imprisonment is probably the most common form of punishment the Sanhita provides for  offences committed throughout the country. Under Section 7 of the Bhartiya Nyaya Sanhita,  imprisonment can be of two types. Such as – simple imprisonment and rigorous imprisonment. The competent Judge can sentence an offender to either simple or rigorous imprisonment, or  make some part of his prison sentence simple and some of it rigorous.  

3.3.1 Simple Imprisonment 

In simple imprisonment, the convict only serves his time in jail, without any obligation to do  any laborious work inside the jail. 

3.3.2 Rigorous Imprisonment 

In rigorous imprisonment, the convict has to serve their time in jail alongside doing physical  labour inside the jail.  

3.4 Solitary Confinement 

Under Section 11 of the Sanhita, when someone is found guilty of a crime for which the court  has the authority to sentence him to rigorous imprisonment under this Sanhita, the court may,  in its sentence, order that the offender be kept in solitary confinement for any portion or  portions of the imprisonment to which he is sentenced, not exceeding three months in total,  based on the following scale:  

∙ time not exceeding one month if the term of imprisonment shall not exceed six months; ∙ time not exceeding two months if the term of imprisonment shall exceed six months  and shall not exceed one year; 

∙ time not exceeding three months if the term of imprisonment shall exceed one year. 

Under Section 12 of the Sanhita, when solitary confinement is used to carry out a punishment,  it must never last longer than fourteen days at a time, with at least 14-day breaks in between;  additionally, when incarceration is granted, it must last longer than three months, solitary  detention must last longer than seven days in any one month of the entire sentence, with breaks  between solitary confinement periods lasting at least as long.

3.5 Community Service 

The Bhartiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) defines community service as the  work which the Court may order a convict to perform as a form of punishment that benefits the  community, for which he shall not be entitled to any remuneration, under Section 23 of the said  Act. It’s unclear what kinds of tasks offenders would be expected to perform, but depending on  their skills and credentials, they might be required to perform public service such as cleaning  the streets, assisting with social welfare programs, working in hospitals, or participating in  environmental conservation projects. 

Also, under Section 8(5) of BNS, if the offence has a fine or community service requirement,  the court will impose a simple jail sentence if the offender fails to pay the fine or complete the  community service. The sentence will be for a simple period of time. If a fine is not paid or  community service is not completed, the following terms will not be exceeded:  

∙ two months, during which the fine will not exceed 5,000 rupees; 

∙ four months, during which the fine will not exceed 10,000 rupees; 

∙ for any other term not exceeding one year. 

3.6 Forfeiture of Property 

Forfeiture of Property is a kind of punishment where the Government seizes all or some part of the offender’s assets as part of his punishment. 

3.7 Limit of Punishment of Offence Made Up of Several Offences 

Under Section 9 of the Sanhita, unless otherwise specified, an offender cannot be punished  with the punishment of more than one of his offences when something that is an offence is  composed of components, any portion of which is an offence in and of itself. If an offense falls  under two or more distinct definitions of an offense under any currently enacted law that  defines or punishes offenses, or if multiple acts that together would constitute an offence  constitute a different offence, the offender shall not receive a harsher punishment than the court  that hears his case could impose for any one of those offenses.

Illustration: (a) A gives Z fifty strokes with a stick. Here, A may have committed the offence  of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which  make up the whole beating. If A were liable to punishment for every blow, he might be  imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the  whole beating. 

(b) But, if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the blow  given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one  punishment for voluntarily causing hurt to Z, and to another for the blow given to Y. 

3.8 Punishment of Person Guilty of One of Several Offences,  Judgment Stating Doubtfully Which 

Under Section 10 of BNS 2023, in any situation when a person is found guilty of one of the  multiple offenses listed in the judgment, but it is unclear which of these offenses he is guilty  of, the offender will be punished for the offense for which the least severe penalty is offered if  not everyone receives the same penalty. 

4. CONCLUSION 

Restoring law and order in society is the primary goal of punishing the person who is accused  of committing an offense. Both the accused’s and the injured party’s interests must be taken  into account while determining the appropriate penalty. It is important to remember that the  severity of the penalty should be exactly correlated with the seriousness of the offense  committed by the perpetrator. The need to keep crime from happening too frequently in society  must be taken into consideration while administering punishment. By assisting in the  customization of penalties to the particular offense committed, the concepts discussed in this  article give the criminal justice system jurisprudential importance.