Punishments under the BNS, including community service

1. Theories of punishment, in brief

An essay on punishments usually opens with the purposes the law pursues:

• Deterrent: to discourage the offender and others.
• Retributive: to give the offender what he deserves.
• Preventive: to disable the offender, by imprisonment or, at the extreme, death.
• Reformative: to rehabilitate the offender. Community service, probation and open prisons belong here.

Indian sentencing combines all four. Community service is the clearest sign in the BNS of the reformative approach.

2. Kinds of punishment: section 4 (old s.53 IPC)

The offenders are liable to:

• (a) Death. Retained for the gravest offences: murder (s.103), murder by a mob on grounds of caste, community etc. (s.103(2)), rape of a girl under twelve (s.65(2)), waging war (s.147), terrorist act resulting in death (s.113). By the “rarest of rare” doctrine, it is imposed only where life imprisonment is unquestionably foreclosed.
• (b) Imprisonment for life. Means imprisonment for the rest of the convict's natural life, subject to remission and commutation. Several sections now say so expressly (“which shall mean imprisonment for the remainder of that person's natural life”), for example ss.64(2), 65 and 70.
• (c) Imprisonment, of two descriptions: rigorous (with hard labour) and simple.
• (d) Forfeiture of property.
• (e) Fine.
• (f) Community service. New.

3. Community service

The Sanhita does not define community service. The Bharatiya Nagarik Suraksha Sanhita, 2023 does, in the Explanation to s.23: work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he is not entitled to remuneration. The Sanhita makes it available only for minor offences, among them:

• a public servant unlawfully engaging in trade (s.202);
• non-appearance in response to a proclamation (s.209);
• attempt to commit suicide to compel or restrain a public servant (s.226);
• theft of property worth less than five thousand rupees by a first offender who returns the value or restores the property (proviso to s.303(2));
• misconduct in public by a drunken person (s.355);
• defamation (s.356(2)).

Section 8(4) and (5) treat default in community service like default in paying a fine: the Court may order imprisonment in default.

4. Commutation and fractions of terms: sections 5 and 6

Section 5 (old ss.54–55 IPC): the appropriate Government may, without the offender's consent, commute any punishment under the Sanhita to any other punishment in accordance with s.474 BNSS. The “appropriate Government” is the Central Government for a death sentence or an offence under a Union law, and the State Government for an offence under a State law. The constitutional powers of pardon under Articles 72 and 161 are separate and unaffected.

Section 6 (old s.57): in calculating fractions of terms of punishment, imprisonment for life is reckoned as equivalent to twenty years, unless otherwise provided. This matters for attempt (s.62, up to one-half of the longest term) and abetment (s.56, one-fourth). It does not mean that a life sentence ends after twenty years.

5. Rigorous or simple: section 7

Where the offence is punishable with imprisonment of either description, the Court may direct that it be wholly rigorous, wholly simple, or partly one and partly the other (old s.60).

6. Fine and imprisonment in default: section 8

• Where no sum is fixed, the fine is unlimited but shall not be excessive, s.8(1).
• The Court may order imprisonment in default of payment, which runs in addition to any other imprisonment, s.8(2).
• If the offence is punishable with imprisonment and fine, the default term cannot exceed one-fourth of the maximum term for the offence, s.8(3), and may be of any description the offence allows, s.8(4).
• If the offence is punishable with fine or community service only, default imprisonment is simple and capped at two months (fine up to ₹5,000), four months (up to ₹10,000) and one year in any other case, s.8(5).
• Default imprisonment ends when the fine is paid or levied, or proportionately on part payment, s.8(6).
• The fine can be levied within six years, or during the term of imprisonment if longer, and the offender's death does not free his estate, s.8(7).

7. Limits where an offence is made up of several offences: sections 9 and 10

Where an offence consists of parts each of which is an offence, the offender is punished for one only, unless expressly provided (s.9(1), old s.71). The illustration: fifty blows in one beating are one hurt, not fifty. Where an act falls within two definitions, the punishment cannot exceed what the Court could award for any one of them (s.9(2)). Where the Court finds the accused guilty of one of several offences but is unsure which, he is punished for the one carrying the lowest punishment (s.10, old s.72).

8. Solitary confinement: sections 11 and 12

Where the Court can award rigorous imprisonment, it may order solitary confinement for part of the term, not exceeding three months in all (s.11, old s.73):

• up to one month if the term does not exceed six months;
• up to two months if the term exceeds six months but not one year;
• up to three months if the term exceeds one year.

In execution, solitary confinement may not exceed fourteen days at a time, with equal intervals, and where the sentence exceeds three months, not more than seven days in any month (s.12, old s.74). The Supreme Court has long treated solitary confinement as a harsh measure to be used sparingly, and it cannot be imposed by prison authorities without a court's sentence.

9. Enhanced punishment for repeat offenders: section 13

A person previously convicted by a Court in India of an offence under Chapter X (coin, currency notes, bank notes and government stamps) or Chapter XVII (offences against property), punishable with three years or more, who again commits such an offence, is liable to imprisonment for life or up to ten years (old s.75). Specific sections add their own repeat-offender rules, such as s.71 (repeat rape offences) and s.303(2) (second theft).

How this is examined

“Explain the kinds of punishment under the BNS” appears regularly, sometimes framed as “community service as a new form of punishment”. Write the list from s.4, give a paragraph on each, and spend most time on community service, the offences to which it applies and its reformative purpose. Short notes are set on solitary confinement, imprisonment in default of fine, and commutation.