A Flawed Overhaul: The New Criminal Laws and Their Shortcomings

The arbitrariness is quite stark in cases where widely different offences attract the same punishments.

File photo of Home Minister Amit Shah. Image used for representation only. 

(Photo: PTI)

Two weeks have passed since the new criminal laws took effect. Even as reforms in the criminal justice system have been ongoing for decades on a piecemeal basis, the rewriting of all three criminal codes was unprecedented.

Replacing laws that have formed the foundation of our criminal justice system for over 150 years required significant political will and transformative ideas. While political will was present, the process lacked the forward-looking, progressive vision necessary for meaningful reform.  

The establishment of the Criminal Law Reforms Committee in 2020 initiated the process, but concerns arose about the committee's composition, lack of diversity, opacity, and terms of reference. Despite these issues, the acknowledgement of the need to revamp the system presented a rare opportunity to reimagine India’s criminal law framework — particularly in ensuring punishments fit the crime. 

The Arbitrariness in Prescription of Punishments

The foundation of modern India’s criminal justice system was laid in the 19th century with the enactment of the Indian Penal Code, 1860. Under the IPC, imprisonment and fines were the primary forms of punishment, aimed at deterrence by inspiring terror in the minds of the local population.

These punishments were often arbitrary, lacking any rationale or method for their prescription. In fact, there is little to suggest why a particular term of imprisonment or a specific amount of fine was deemed appropriate for a crime.

Perhaps this arbitrariness was expected under colonial rule, which used criminal law to further its politico-economic goals, with little concern for the reformation of offenders, restitution of victims, and the reintegration of ex-convicts. Over time, with the enactment of special laws, this inconsistency in the prescription of punishments only spread and became more apparent.

List of offences and their corresponding punishments. 

(Photo: Author)

On excessive discretion between mandatory minimum imprisonment and life imprisonment. 

(Photo: Author)

For instance, the offence of obstructing a public servant under the IPC attracted imprisonment for up to three months, while the same offence under the Railways Act, 1989, and the Customs Act, 1962, attracted six months and two years, respectively.

Rewriting the codes provided an opportunity to ensure punishments are proportional, rational, and consistent. However, the Bharatiya Nyaya Sanhita (BNS), 2023, continues to exhibit an ill-conceived approach towards prescribing punishments, showing little consistency and seemingly perpetuating the colonial policy.

Arbitrariness in the Terms and Nature of Imprisonment

Even as the doctrine of proportionality demands that punishments for offences must not be excessive or insufficient, the BNS and other special laws prescribe widely different punishments for the same or similar acts across different legislations.

For instance, providing false information for the purpose of being inserted in any register of births and deaths under Section 23 of the Registration of Births and Deaths Act, 1969 may attract a maximum fine of up to Rs 1000, but the same offence attracts a prison term of three years under Section 27 of the Births, Deaths and Marriages Registration Act, 1886.

Similarly, in the BNS, selling a minor child for prostitution may attract a 10-year sentence, while buying a child for the same purpose may attract a 14-year sentence under Sections 98 and 99 respectively.

Fines prescribed without discernible rationale. 

(Photo: Author)

Fines prescribed without discernible rationale. 

(Photo: Author)

The arbitrariness in the prescription of punishments is even more stark in cases where widely different offences attract the same punishments. Mischief causing damage to the amount of between Rs 20,000 and Rs 1,00,000 can attract a two-year jail term under Section 324(4) of the BNS, the same as the concealment of birth by secret disposal of a dead body under Section 94 of the BNS or using a firearm negligently under the Arms Act, 1959.

Similarly, making false statements to a public servant under Section 216 of the BNS and subjecting a woman to cruelty under Section 85, both attract a maximum of three years imprisonment, even though the offences are vastly different from each other.

This inconsistency extends to the types of imprisonment prescribed. Like the IPC, the BNS prescribes two types of imprisonment: rigorous, which requires the convict to do hard labour while serving the prison term, and simple imprisonment, which does not.

However, there is no clear rationale for why some offences warrant rigorous imprisonment and others simple. For example, preparing to commit dacoity attracts rigorous imprisonment of up to 10 years, while offences like rioting or culpable homicide not amounting to murder can attract either type of imprisonment.

Excessive Judicial Discretion

Another significant shortcoming of the BNS is its failure to address the issue of excessive judicial discretion, which is particularly troubling given the lack of a clearly defined sentencing policy. For several offences, the BNS continues to prescribe a mandatory minimum term of imprisonment which may extend up to life imprisonment, creating a very wide range of sentences that may be given.

For instance, causing dowry death under Section 80 attracts a mandatory minimum sentence of seven years, but may extend to life imprisonment. Intentionally harbouring or concealing an offender of organised crime under Section 111(5) may attract a prison term of anywhere between three years and life imprisonment. On the other hand, knowingly possessing any property derived from the commission of a terrorist act under Section 113(7) can attract any duration of imprisonment ranging from one day to life imprisonment.

Different offences, punished similarly. 

(Photo: Author)

Some fines are restorative and rehabilitative, others are not. 

(Photo: Author)

Fines for Some Offences, Not for Others

This arbitrariness further extends to the prescription of fines under the BNS. For some offences, the BNS prescribes a fine, while for others, it does not, without any apparent principle. For instance, the offences of acid attack, murder, and culpable homicide not amounting to murder under the BNS prescribe a fine in addition to the term of imprisonment. However, for the offences of rape causing death or dowry death, no such fine is prescribed.

Further, for several offences where a fine has been prescribed as a form of punishment, the amount has been mentioned, while for many others it has not. 

The BNS fails to provide a coherent and rational framework for prescribing punishments, leading to arbitrariness and inconsistency. This undermines the principles of justice and proportionality that should underpin any criminal justice system. As we move forward, it is crucial to address these flaws and ensure that our criminal laws are just, rational, and consistent. Only then can we hope to build a criminal justice system that truly serves the cause of justice and not merely punishes. 

(Naveed Mehmood Ahmad is Team Lead, Crime & Punishment at Vidhi Centre for Legal Policy. This article is based on Vidhi’s latest report on How India Punishes. Available here. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)