Mandatory Minimum Punishment And Enhancement Of Punishment - A Double-Edged Sword In Criminal Justice
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
MANDATORY MINIMUM PUNISHMENT AND
ENHANCEMENT OF PUNISHMENT: A DOUBLE-EDGED
SWORD IN CRIMINAL JUSTICE
Sharadha, B.A., L.L.B (Hons), Sastra Deemed To Be University, Tamil Nadu
G. Raga Harshita, B.B.A., L.L.B (Hons), Sastra Deemed To Be University, Tamil Nadu
Marthala Joshika Reddy, B.B.A., L.L.B (Hons), Sastra Deemed To Be University, Tamil Nadu
ABSTRACT
The Bharatiya Nyaya Sanhitha (BNS), has the latest reform included in the Legal framework of the Criminal Justice System in India and it replaces the earlier Indian Penal Code (IPC) providing an up-to-date resolution to today’s problems. In this article, we have worked on the significant differences that the BNS provides against the IPC, notably the harsher measures taken against extreme crimes and the establishment of mandatory minimum sentences for such crimes. The BNS, like other legal enactments all over the globe, aims to prevent crime through various means. The objective of the article is to provide a comparison of the new and the old criminal law in terms of the provisions of punishments.
While equally contrasting how different schools of thought regarding punishment have been fused in the newly crafted criminal law's, framework aimed at providing punishment and its use on crime rate control in the society.
INTRODUCTION:
The Bharatiya Nyaya Sanhitha replaces the IPC as society modernizes, highlighting the need to update laws and refine the Indian criminal justice system. In the BNS, many new laws have been introduced, and some laws have been removed. Punishments are enhanced in BNS compared to IPC as Society is changing, there is a need to bring enhancement in punishments, IPC provisions have become antiquated in present-day society. The present changes are to ensure that Punishments reflect the severity of offences in line with the realities of today’s society, hence there will be reducing in crime rate. This analysis will examine the key differences between the old and new criminal laws in India, with a particular focus on the increased severity of punishments and introducing minimum sentences under the BNS.
This shift reflects the government's focus on creating a more robust legal system capable of addressing the complexities of present-day crime while ensuring that the laws are fair and just. Comparing these changes to the IPC, the BNS offers a more structured and stringent framework, intending to balance punishment and reformation.
THEORIES OF PUNISHMENTS:
Punishment is a consequence or result of a wrong committed by a person. There are theories to determine punishment. There are four kinds of theories and one compensatory theory. They are:
1. Deterrent theory:
Deter: To prevent someone from committing a crime. Bernett J quoted, “Thou art to be hanged not for having stolen a horse, but so that other horses may be stolen”. The object of this theory is that a person should be punished not just because he has committed an illegal act, but also to ensure the crime is not committed. Therefore, the theory is to deter or prevent criminals from attempting a new crime or committing the same crime again in future. The new criminal law, BNS, focuses mainly on the deterrence theory as it implements harsher punishment for offences and by increasing the fine amount for the offences. It focuses on deterring potential offenders by implementing a minimum term of imprisonment where a person will certainly get punished for his crimes.
2. Retributive theory:
This theory is based on the Doctrine of lex talionis which means tooth for tooth, eye for eye, limb for limb and nail for nail. A person who believes in the theory of retributivism believes that the person doing wrong should suffer pain proportionate to what he has inflicted on an individual or the society as a whole.
BNS aligns with retributive theory where it holds the individual morally accountable for their actions. BNS is deterrence through retribution.
3. Preventive theory:
This theory aims to prevent future danger by transforming the criminal either temporarily or permanently. This is done by isolating the offender from rest of the society either temporarily, by incarceration for a specific period or permanently by awarding life imprisonment and in instances of rarest of rare cases by application of capital punishment. The preventive theory is closely linked to the deterrent theory while the latter is to deter society, the former focuses on preventing the offender from committing the crime. Although the focus is on deterrence, BNS also exhibits preventive theory where it aims to prevent future crimes by imposing life imprisonment which is, a term of imprisonment for the rest of their natural life which ensures that the offender will be imprisoned for the rest of his life thus preventing him from committing crimes.
4. Reformative Theory:
Mahatma Gandhi, father of reformative theory says that; condemn the sin not the sinner. Reformative theory is also known as Rehabilitative Sentencing. In the case of Mohammad Giasuddin vs. State Of Andhra Pradesh, 1the court quoted George Benard Shaw’s quotations, stated that, “Every saint has a past and every sinner has a future”. It has been successful to quite an extent with Juveniles due to provisions of parole, pardon, probation, commutation of sentence remand homes etc. This theory involves the transformation of offenders and faith in re-educating and trying to reform them by teaching a particular skill, art or industry work or by educating them so that they may be able to lead a normal life after they are released from jail. BNS treats the first-time offenders and juveniles differently ensuring a chance for rehabilitation.
The emphasis on community services as a new punishment type aligns with the reformative theory's social reform character. It incorporates these punishments in hopes of rehabilitating and trying to reintegrate individuals into society as a law-abiding citizen
5. Expiatory theory:
This theory relies on the principle to pay for the sin committed. The Expiatory Theory of Punishment is based on the view that repentance or expiration by the offender itself is a punishment. Expiatory forms of
1 Mohammad Giasuddin v State of Andhra Pradesh
1977 AIR 1926, 1978 SCR (1) 153
punishment favour economical and compensatory forms of punishment rather than physical punishment. BNS have increased the fines the offender has to pay for the offences he has committed which aligns with the expiatory theory and the implementation of community services which helps the offender atone for his crimes.
MANDATORY MINIMUM PUNISHMENTS:
A notable feature of the BNS is the introduction of minimum sentences for certain offences. Mandatory Minimum Punishment means the convicted person should serve a minimum term of imprisonment as punishment for the offences committed. The Court should give the convicted person a mandatory minimum punishment, and it does not give the court any discretion. For example, the new law mandates a minimum sentence of 10 years for rape, as opposed to the previous law, which did not specify a minimum sentence. The introduction of minimum sentences aims to ensure consistency in sentencing and to send a strong message about the gravity of the crimes. Mandatory Minimum Punishment is introduced for the offences which are considered to be more serious than others, to ensure justice and to fairly punish the convicted person. It impacts the people and the society.
Mandatory Minimum Sentences can help deter the commission of crimes and discourage people from committing crimes. It limits the judicial discretion which in turn leads to ensuring justice and the perpetrator would be punished fairly for the offence he has committed. It may also have negative impacts like overcrowding of prisons and the punishment for first-time offenders is overlooked. So, Mandatory Minimum Punishments can have both positive and negative impacts. Now we will see the offences for which mandatory minimum punishments are introduced. They are:
Section 111[2][b] – Organised Crime. Shall not be less than five years Section 111[3] – Abetting, attempting, etc., of an Organised Shall not be less than five years Crime. Section 111[4] – Being a member of an Organised Crime. Shall not be less than five years Section 111[5] – Harbouring a member of Organised Crime. Shall not be less than three years Section 111[6] – Possessing property derived from Organised Shall not be less than three years Crime. Section 111[7] - Possession of property on behalf of a member Shall not be less than three years of Organised Crime syndicate.
Section 113[4] – Organising a camp for Terrorist Act. Shall not be less than five years Section 113[6] – Harbouring any person who has committed Shall not be less than three years any Terrorist Act. Section 117[3] – Voluntarily causing grievous hurt resulting Shall not be less than ten years in permanent vegetative state. Section 118[2] – Voluntarily causing hurt or grievous hurt by Shall not be less than one year dangerous weapons or means. Section 121[2] – Voluntarily causing hurt or grievous hurt to Shall not be less than one year deter public servant from his duty.
Section 204 – Personating a public servant. Shall not be less than six months Section 303[2] – Theft. Shall not be less than one year Section 310[3] – Murder in Dacoity. Shall not be less than ten years Section 314 – Dishonest misappropriation of movable Shall not be less than six months property. Section 320 – Dishonest or fraudulent removal or concealment of property, etc., to prevent distribution among Shall not be less than six months2 creditors.
As stated in the case, State of M. P. Vs. Bablu 3it's said that it is the solemn duty of the Court to strike a proper balance while awarding a sentence as awarding a lesser sentence encourages any criminal and because of the same society suffers. Thus, advocating for enhanced punishment in certain offences. Similarly, in Shailesh Jasvantbhai & Anr vs State of Gujarat & Ors 4on 19 January 2006, the court said that in operating the sentencing system, the law should adopt the corrective machinery or deterrence based on a factual matrix and that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. They have highlighted the importance of imposing harsher punishments for more serious offences to uphold justice and societal interests.
However, some scholars have argued that the effectiveness of punitive measures in reducing crime is debatable, as it may not address the underlying social, economic, and psychological that contribute to criminal behaviour. The effectiveness of these reforms must be carefully monitored to ensure that the law serves and balances justice. There are offences for which the punishment is that of fines, which have also been enhanced along with the terms of imprisonment. The sections for which the description of terms is increased are:
SL.NO
NEW SECTION AND
OLD SECTION AND
PUNISHMENT [BNS]
PUNISHMENT [IPC]
S. 99. Buying child for purposes of
373. Buying minor for purposes of
prostitution, etc. -shall not be less prostitution, etc.- may extend to 10 than seven years but may extend to years
14 years
S. 104. Punishment for murder by
S. 303. Punishment for murder by lifelife-convict-punished with death or
convict-punished with death with imprisonment for life, which shall mean the remainder of that person's natural life S. 105. Punishment for culpable
S. 304. Punishment for culpable
homicide not amounting to murder-a homicide not amounting to murder-a term but which may extend to 10 term which may extend to 10 years, or years with fine fine, or both S. 106. Causing death by negligence.
S. 304-A. Causing death by
Sub-S. (1)-may extend to 5 years, negligence-may extend to 2 years, or and shall also be liable to fine with fine, or both
S. 122. Voluntarily causing hurt or
S. 335. Voluntarily causing grievous
grievous hurt on provocation. Sub- S. hurt on provocation. - may extend to (2)-may extend to 5 years four years S. 125. Act endangering life or
S. 338. Causing grievous hurt by act
personal safety of others. Cl. (b) -may endangering life or personal safety of extend to 3 years others. - may extend to 2 years S. 127. Wrongful confinement. Sub-
S. 343. Wrongful confinement for
S. (3)-may extend to 3 years
three or more days.- may extend to 2 years S. 127. Wrongful confinement. Sub-
S. 344. Wrongful confinement for ten
S. (4)-may extend to 5 years
or more days.- may extend to 3 years S. 127. Wrongful confinement. Sub-
S. 346. Wrongful confinement in
S. (6) - may extend to 3 years
secret. - may extend to 2 years
S. 191. Rioting. Sub-S. (3)-5 years
S. 148. Rioting, armed with deadly
weapon.-3 years
S. 217. False information, with intent
S. 182. False information, with intent
to cause public servant to use his to cause public servant to use his lawful power to injury of another lawful power to the injury of another person. - 1 year person.-6 months S. 241. Destruction of document or
S. 204. Destruction of document or
electronic record to prevent its electronic record to prevent its production as evidence. - 3 years production as evidence.-2 years S. 243. Fraudulent removal or con-
S. 206. Fraudulent removal or
cealment of property to prevent its conceal- ment of property to prevent seizure as forfeited or in execution. - its seizure as forfeited or in execution.-
2 years
3 years
S. 248. False charge of offence made
S. 211. False charge of offence made
with intent to injure. Cl. (a)-5 years with intent to injure. Para. 1-2 years
S. 316. Criminal breach of trust. Sub-
S. 406. Punishment for criminal
5. (2)-5 years
breach of trust.-3 years
S. 318. Cheating. Sub-S. (2)-3 years
S. 417. Punishment for cheating-1
year
S. 418. Cheating with knowledge that
wrongful loss may ensue to person
S. 318. Cheating. Sub-S. (3)-5 years
whose interest offender is bound to protect.-3 year S. 322. Dishonest or fraudulent exe-
S. 423. Dishonest or fraudulent execution of deed of transfer containing
cution of deed of transfer containing false statement of consideration.-3 false statement of consideration.-2 years years S. 323. Dishonest or fraudulent re-
S. 424. Dishonest or fraudulent removal or concealment of proper- ty.-
moval or concealment of property.-2
3 years
years
CONCLUSION:
The new act Bharatiya Nyaya Sanhitha (BNS) embarks on a notable change in India's criminal justice system. Enhancement of Punishment and Minimum mandatory punishments are introduced to adapt to modern societal changes. IPC is antiquated, the new act BNS intends to curb the criminal behaviour of people with strict laws and rigorous punishments. All of these changes are aligned with various punishment theories and in this case, most likely the deterrent approaches or at least retributive concepts. It is right because there are two sides to the coin but here the public critics fear whether stricter punishments would be enough to decrease the crime rate, they also focus on underlying social issues corresponding with our Criminal justice system.
Reference: • Manupatra, https://www.manupatrafast.com •
45 of 2023, BARE ACT, BHARATIYA NYAYA SANHITA, Professional’s 2023.