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Under Bharatiya Nyaya Sanhita Lacks Statutory Standards, Based on Fine Inapplicable
India’s new criminal codes introduced as a sentencing option for the first time, but the provision has been left without statutory scaffolding—neither defining what the punishment entails nor specifying what happens when a convict fails to perform it. This dual gap, flagged in a detailed analysis of the (BNS) and the (BNSS), leaves the sentence “running loose from the day it is imposed to the day it collapses,” with no legislative reins at either end. The result is a regime that risks , , and inconsistent application across courts.
The Two Gaps: Content and Consequence
The first gap lies in the definition of itself. Section 23 of the BNSS, the only statutory description, merely explains that it is work a court may order a convict to perform for the benefit of the community, without remuneration. It provides no schedule of permissible tasks, no floor or ceiling on duration, no designated supervising body, and no mechanism to certify that the work actually benefited anyone. As the analysis puts it, “no content assigned to the punishment.”
The BNS attaches to six offences. In five—including unlawful trade by a public servant, non-appearance, attempt to suicide to compel or restrain lawful power, public misconduct while drunk, and defamation— is an option alongside imprisonment and fine. But in the sixth, a proviso under Section 303(2) for first-time theft of property worth less than five thousand rupees where the offender has returned the property, is mandated: the offender “shall be punished with .” Yet even this mandatory provision lacks any detail on what the service must involve.
The second gap concerns default enforcement. Section 8 of the BNS, which consolidates the old IPC provisions on default in payment of fine, was amended to include . Subsection (4) allows a court to imprison a convict who defaults in , and subsection (5) fixes the imprisonment term by reference to the amount of fine—two months if the fine does not exceed five thousand rupees, four months if it does not exceed ten thousand, and up to a year otherwise. Subsection (6) allows the imprisonment to end only when the fine is paid or recovered. But crucially, the words “” do not appear in subsection (6). The entire is calibrated to a fine that, in cases, was never imposed.
Where is chosen instead of a fine, there is no “amount of fine” to serve as a benchmark. For the mandatory provision under Section 303(2), no fine exists at all because the convict has already compensated the complainant. A magistrate faced with a defaulting convict under that provision must apply a formula keyed to a non-existent fine, and the defaulting convict has no textual route back out of imprisonment. The analysis notes that the two problems are “not just close together—the first one causes the second one.”
Judicial Divergence: A Patchwork of Approaches
In the absence of statutory guidance, courts have filled the vacuum with highly individualised orders. The , while quashing a case after settlement between parties, directed two men accused of assault and outraging a woman’s modesty to perform one month of at Gurudwara Rakab Ganj Sahib. In another settled case, the same court directed a family to plant fifty saplings. In yet another matter, it ordered two police personnel who had clashed with a lawyer to plant a hundred trees. The , setting aside a college’s debarment of two students accused of stealing snacks and stationery, directed them to serve two hours a day for two months at an old age home.
None of these orders is indefensible on its own facts, but they cannot be reconciled with one another by reference to the statute. As the analysis points out, the statute supplies no organising principle connecting offence to task. This discretionary freedom echoes the concern the expressed in State of West Bengal v. Anwar Ali Sarkar (), where a provision allowing the executive to select cases for a harsher procedure without was struck down under . The court held that discretion so unanchored makes ordinary rather than exceptional. The later judgment in Maneka Gandhi v. Union of India () reinforced the requirement that state action touching must be non-arbitrary.
While is a rather than a , the same anxiety about applies. The analysis argues that exercised without articulated standards is “” and sits in tension with Articles 14 and 21.
A Way Forward: as an Interim Fix
The analysis proposes a solution that requires no legislative amendment. For Section 23 BNSS, there must be a statement connecting the category of offence to the category of permissible services, along with a designated supervising and certifying body—either a or an appointed probation officer—to make performance verifiable. For Section 8 BNS, a scale of durations for should be set independently of a fine, and a should allow imprisonment to end or be reduced proportionately when the convict completes or nearly completes the service.
Neither change would require modification of the structure of either Sanhita. , the analysis notes, could provide as much structure as once provided for capital punishment, without waiting for legislative intervention. Until then, remains “a sentence without a bridle,” made to answer for its failure in a mechanism that was never meant to accommodate it.
Conclusion
The introduction of into Indian criminal law is a progressive step, but its implementation has been fatally under-designed. The absence of statutory content and default consequences not only creates confusion for courts and litigants but also risks constitutional vulnerability. Until the legislature or the higher judiciary steps in with clear guidelines, the promise of as a will remain unfulfilled, leaving judges to improvise and convicts to face an unpredictable regime.
