The Transformation of Indian Criminal Justice System
The transformation of Indian criminal justice system based on its colonial origins to the modern model reflected in the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) is a landmark shift in the legislative sphere where the focus of the criminal justice system is no longer on penalisation but primarily on the concept of justice.
At the heart of this development is the process of sentencing, the phase of the criminal trial in which the punitive force of the state is most effectively fulfilled.
Even after the significant rewriting of the substantive and procedural codes, there remains a significant structural issue, namely the lack of codified sentencing provisions.
The result of this vacuum is that the quantum and nature of punishment is left to the wide discretion of the judiciary a state of affairs that in the past has seen inconsistencies in the way people are sentenced whereby the outcome in the sentencing process is often different depending on the subjective thinking of the individual judges.
Philosophical Principles and Sentencing Theory Development
Sentencing discretion practice can be traced back to the rival penology theories, deterrence, retribution, prevention, and reformation.
| Sentencing Theory | Core Objective |
|---|---|
| Deterrence | Aims at making an example out of the offender to deter the trends of crime within the society. |
| Retribution | Is concerned with the moral proportionality, and the cry of victimisation in the society. |
| Prevention | Eliminates the possibility of the offender committing the crime again. |
| Reformation | Tries to reform and integrate the individual into the community. |
In India, judiciary has traditionally manoeuvred these theories using the individualised sentencing system, when the judge pays attention to the seriousness of the crime, as well as the peculiarities of the criminal.
The legislature, under the repealed Indian Penal Code (IPC), and the successor, Bharatiya Nyaya Sanhita (BNS), generally stipulates a set of penalties, which specifies only the maximum penalty, and in a few cases, the minimum penalty, with the quantum to be determined by the court.
This uninformed discretion is supposed to permit a journey to arrive at a sufficient sentence founded on aggravating and mitigating circumstances.
This flexibility however is dangerous without a well guided policy that may allow it to degenerate into arbitrariness which results in a judge centric instead of a law centric administration of justice.
Colonial Origins and Sentencing Structure Under the IPC
The Indian Penal Code of 1860 that was applicable in the colonials was made to ensure that the British Raj interests were met and that the subjects were punished instead of delivering justice to the citizens.
This was the same mindset as evidenced on its sentencing order that gave a broad latitude to the judicial officers in order to bring order.
The Indian judicial system in the last 100 years had the traditional common law formula in which the appellate review was the sole institutional restraint on the uniformity of sentencing.
Statutory Punishments Under Section 53 of the IPC
The kinds of punishments that can be imposed by the courts were stipulated by Section 53 of the IPC:
- Death
- Life imprisonment
- Rigorous or simple imprisonment
- Forfeiture of property
- Fine
Though this part listed the tools that were available, it was silent on the rationale as to why a particular sentence was chosen out of the statutory range.
This was a lack of direction to the point where the judiciary had to shoulder a heavy burden of finding the right balance between the rights of the criminal and the rights of the victim and the society.
The Judicial Structuralism of Discretion Regulation
Where there are no legislative guidelines, the Supreme Court of India has been central in developing judicial principles that can be used to govern sentencing discretion. The landmark cases have tried to bring in an element of predictability and fairness in a system that is highly variable in nature.
Judicial Intervention in Capital Punishment
The greatest judicial intervention was the one in the area of capital punishment. In Bachan Singh v. State of Punjab (1980), the Supreme Court set the doctrine of awarding death penalty by stating that the death penalty should be given only when life imprisonment is actually inadequate. This doctrine required balancing between aggravating conditions concerning the crime and the mitigating conditions concerning the criminal.
Machhi Singh v. State of Punjab (1983) further expounded this doctrine and gave five categories to inform this discretion.
Five Categories Laid Down in Machhi Singh
- The manner in which the murder was committed
- The motive behind the crime
- Whether the act was anti-social or abhorrent to the social society
- The magnitude or extent of the crime
- The personality or character of the victim
Regardless of this, there has been inconsistency in the application of the doctrine, with various benches in most cases coming up with different decisions on the same set of facts. The question of the arbitrariness of the executions remains a matter of contention because of the subjective meaning of what represents the “rarest of rare.”
Besides the death penalty, the judiciary has also focused on the principle of proportionality—that the punishment must fit the crime—and parsimony, which implies that a sentence must be no harsher than the necessary means of attainment of sentencing objectives.
Continuous Reform Requests and Committee Reforms
High-level committees have been aware of the need to have structured sentencing guidelines over the last 20 years. Nevertheless, the final editions of the BNS and BNSS have very little of these recommendations.
Malimath and Madhava Menon Committees
| Committee | Year | Key Observations |
|---|---|---|
| Committee on Reforms of the Criminal Justice System (Justice V.S. Malimath) | 2003 | Held that lack of guidelines led to confusion in sentencing; stated that sentencing must not be a matter of judicial guesswork and recommended an advisory committee to frame clear instructions to reduce variation. |
| Madhava Menon Committee | 2008 | Reiterated the importance of statutory guidelines and observed that unguided discretion eroded the effectiveness of law and created an impression of injustice among victims and their families. |
The inability to reflect these suggestions in the legislative changes of 2023 is seen by many as a great missed chance. The existing regime still sticks to the idea of individualisation of punishment which, although sufficient in theory, tends to lack empirical support and consistency that statutory guidelines could have offered.
This absence of a systematic policy has made sentencing a judiciary-centric process, in which the personal philosophies of the presiding judge—whether deterrence or reformation should be the principal focus—can lead to extremely different results for a similar offence committed under an identical set of circumstances.
Structural Analysis of the Bharatiya Nyaya Sanhita (BNS) 2023
With the Bharatiya Nyaya Sanhita (BNS), 2023, it is no longer the IPC, but it still takes much of the substantive core of the previous code. The BNS has 358 sections, as compared to 511 of the IPC, which has been achieved mainly through consolidation of definitions and optimisation of repetitive wording.
Key Structural and Substantive Changes
- Creation of 20 new crimes
- Enhanced penalties for 33 offences
- Increased fines for 83 offences
- Introduction of community service as a recognised punishment under Section 4(f)
The introduction of community service reflects a shift in the approach to justice towards a more reformative model.
The BNS also incorporates offences such as terrorism and organised crime into the general penal code, which were earlier governed primarily through special laws. While these inclusions aim at establishing a comprehensive legal framework, they also introduce mandatory minimum sentences for 23 serious offences, including culpable homicide not amounting to murder and kidnapping for begging.
Mandatory minimum sentences are intended to make crime deterrence stricter but have been criticised for curtailing the judiciary’s ability to consider mitigating circumstances. Another significant change is the rationalisation of fines in accordance with prevailing economic conditions, with fines now ranging from three hundred rupees to ten lakh rupees for serious offences, particularly those arising from organised criminal activity.
The Community Service: Restorative Justice in Action
This is perhaps the most progressive development associated with the inclusion of community service as a part of the BNS. Formerly applied only to the issues of juvenile justice, community service has become a statutory alternative to imprisonment when it comes to minor offences.
The community service implementation is meant to keep offenders responsible and to enable them to pay to the society and to limit the overcrowded prison system. The work type is determined by the capabilities of the offender and is aimed at serving the community with such activities as:
- Keeping the areas clean
- Helping in community project development
Whereas the legal foundation is given by the BNS, the BNSS gives the procedural structure on its implementation, even the sentencing authority of magistrates to allow community service in summary trials.
Implementation Challenges And Judicial Consistency
Nevertheless, there are still obstacles, especially the absence of a unified monitoring system in all states and the necessity to have trained personnel to handle criminals who do community service. In the absence of explicit guidelines, there is a danger that judicial application can lack consistency, which can result in:
- The possibility of abuse
- The impression of light treatment of cases where a more traditional punitive result is appropriate
Procedural Discretion And The Bharatiya Nagarik Suraksha Sanhita (BNSS)
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, substitutes the Code of Criminal Procedure (CrPC) and regulates the procedural issues of sentencing.
Although it brings about timelines on which the investigations and trials will be used to fight judicial latitude, it also broadens the powers of the police in a manner that affects the pre-sentencing atmosphere.
Police Custody And Pretrial Impact
The police custody under Section 187 of the BNSS has been made to extend to the maximum request time, meaning that it can be requested in less duration at any time within the initial 40 or 60 days of investigation.
The change is far-reaching in the freedom of the accused as well as it can influence the pretrial sentencing reality commonly experienced by undertrials.
Forensic Mandates And Victim-Centric Measures
The BNSS also brings in compulsory forensic practice in cases that carry a penalty of seven years or above. Since the offence is subject to such punishment, experts are required to:
- Record the crime scenes
- Collect material evidence
- Take finger impressions
- Collect voice samples
The purpose of this move is to have stronger evidence of sentencing, and this may minimize the insecurity that is so much associated with judicial decision making.
In addition, the BNSS adds victim centric provisions, including the requirement of providing notification to a victim prior to issuing a prosecution, which introduces an element of responsibility to the exercise of the prosecutorial and judicial discretion.
The Controversy Of Section 10 BNS: Approximation Of Punishment
Another important and extremely controversial amendment to the new code is the inclusion of Section 10 of the BNS that covers the case when an individual is convicted of one of the multiple offences, and the court cannot be sure which particular act was perpetrated.
In such cases, the section provides that the offender shall be subject to punishment on the offense the least punishment is provided.
Fairness Versus Evidentiary Standards
Although it is mentioned as a procedure of fairness so that the accused person does not face a stricter sentence than what the law authorises against cases of ambiguity, it has provoked a very high concern over the evidentiary standard of the criminal law.
Section 10, according to critics, in effect condones the ability to use doubt as a foundation of punishment, which is against the overall doctrine that a human being should be acquitted in the event that the criminal is doubted of committing a particular crime.
Constitutional Concerns Under Article 21
The section is viewed to place the burden onto the accused to prove general allegations because it allows one to be punished in a manner the prosecution cannot demonstrate the particular crime committed.
Some see this as an unwarranted expediency and a dilution of the art of judgment writing that compromises the probity of the findings that the judicial system makes of guilt.
Constitutionally, the issue is that this provision does not agree with Article 21 which guarantees the fair and just procedure because it may lead to the criminal conviction without a perfectly defined established liability.
Comparative Analysis: Lessons of the UK Sentencing Council
When discussing the way to go with the reform, the Indian legal system often refers to other common law jurisdictions, most notably the United Kingdom. In England and Wales there is a centralised body that oversees sentencing called the Sentencing Council. The Council was formed following the Coroners and Justice Act of 2009, as an independent body tasked with the responsibility of coming up with detailed offence specific guideline. Such guidelines offer a systematic method of sentencing, by the court initially identifying the type of the crime by the culpability and damage and then setting the sentence in a prescribed margin.
Comparative Feature
| Feature | Indian Judicial System | UK Sentencing Council Model |
|---|---|---|
| Institutional Framework | Traditional Common Law formula. | Statutory single guidelines authority. |
| Source of Guidance | Appellate review and precedents. | Offense specific statutory guidelines. |
| Compliance Requirement | Wide judicial discretion. | Statutory duty to follow guidelines. |
| Departure Mechanism | No formal requirement for justification. | Must provide reasons if contrary to justice. |
| Public Engagement | Minimal institutional outreach. | Broad remit for community outreach. |
The English model is frequently referred to as a compromise, which maintains the independence of the judiciary but offers the obvious outline of transparency and publicity. It has been advised that India need not persist with US style, strict sentencing grids that have been accused of overly impacting marginalised groups but instead they should use a council-based system that can suit the sheer diversity as well as the local socioeconomic variations within the Indian context.
Establishing advisory sentencing commission or council in India would be of high use that would encourage equality and the fact that similar offenders who commit similar offences should be treated similarly.
Socio-Legal Effects and the Need to Have a Statutory Policy
Lack of sentencing guidelines in India is not just an issue of procedure or technicality; it has very far-reaching social implications. Without objective criteria, extralegal influences like social position, media reporting, and popular response inevitably creep into the sentencing decision.
- The studies show that minority groups and poor people tend to be at a greater risk of a death sentence.
- Although this is meant to guarantee hardness on crime, mandatory minimum sentences have the tendency to cause injustice in that they do not look at the individual facts of each case like that of one being forced to commit a crime by poverty or intimidation.
The existing proportionality and deterrence philosophies often receive precedence over reformation that may cause feelings of injustice to the victims and their families where the process of sentencing seems unequal.
The creation of certain sentencing rules through a systematic methodology, dividing the crimes into definite categories such as violent crimes, property crimes, and white-collar crimes, would guarantee the clearness and justice. More so, punishments should be reviewed frequently to make sure they are neither unfair nor discriminatory of some systemic biases that might be present.
There must be a balance to the situation in which judges are not only provided with the guidelines but also given a satisfactorily reasonable degree of freedom to deliver just decisions depending on the facts and the narrative behind each case.
Bringing Technology and Forensic Standards Together: The BSA Impact
Although the legislation of evidence is addressed in the Bharatiya Sakshya Adhiniyam (BSA), 2023, the standards of evidence needed to prove serious offences are indirectly influenced by the sentencing stage.
The BSA will minimise the speculative component of decision making in a court of law by offering a contemporary framework about the admissibility of digital evidence and findings of forensics.
As the evidentiary standard is increased, the resultant sentencing procedure can be more based on the proven fact as opposed to judicial instinct. Nevertheless, the analysis finds that, unless there are organised sentencing principles, judicial discretion will remain problematic to uniformity and fairness even in the new BSA, BNS, BNSS regime.
Integration of Technology in Criminal Proceedings
The BNSS and BSA also provide the integration of technology that enables proceedings to be conducted electronically using audio video tools, which may enable a much faster sentencing hearing in which both the victims and offenders could be heard without the delays that are associated with physical transportation.
Such innovations, as a procedural one, provide a platform on which a more sophisticated sentencing policy may eventually be applied.
However, the main problem is the legislative stagnation in terms of codifying the postulates of sentencing, and the why and how much of punishment is only a matter of subjective decision of the particular judge.
Conclusion: A Decolonized and Consistency Sentencing Policy
The development of the IPC/CrPC/IEA into the BNS/BNSS/BSA is an important attempt to modernise the Bharatiya criminal justice system and abandon the colonialist tradition.
Bringing about community service, repealing the laws that deal with women and children and harmonising the fines with the present-day economic situations are a positive move towards a better system.
Nevertheless, this lack of sentencing policy is still a major loophole that jeopardises the concepts of uniformity and equality.
Judicial Discretion and the Problem of Arbitrariness
Although this discretionary power that judges have is unguided and is supposed to help them administer justice in a personalised way, it usually ends up in disparity and arbitrariness.
The suggestions of the high-level commissions such as Malimath and Madhava Menon are pertinent to this day as they were more than ten years ago.
Towards a Systematic and Principled Sentencing Framework
To literally deliver the guarantee of Nyaya (justice), the parliament should come up with a systematic system of sentencing possibly by having a Sentencing Council who will give a precise instruction on the severity of the offence and a balance of aggravating and mitigating factors.
This would guarantee that the quantum of punishment is not established based on the consideration of the notion of justice that is held by a single judge, but through a principled and transparent standard of the statute that can appropriately ensure the dignity and the rights of every citizen.
References / Works Cited
- Lone, Wasiq, The Functional Contraction of Article 19(1)(a): Freedom of Speech in the Age of National Security and Digital Surveillance (October 30, 2025).
Available at SSRN:
https://ssrn.com/abstract=5680363
or
http://dx.doi.org/10.2139/ssrn.5680363 - Wasiq@11, and Legal Service India. “Bail vs. Jail: Why Pre-Trial Detention Remains India’s Hidden Crisis.”
Legal Service India – Articles, 16 Dec. 2025.
https://www.legalserviceindia.com/Legal-Articles/bail-vs-jail-why-pre-trial-detention-remains-indias-hidden-crisis/ - The Doctrine of ‘Rarest of Rare’ in Capital Sentencing.
https://ijlmh.com/wp-content/uploads/The-Doctrine-of-‘Rarest-of-Rare-in-Capital-Sentencing.pdf - PNR Journal Article (PDF).
https://www.pnrjournal.com/index.php/home/article/download/5548/6744/6778
Written By: Wasiq Billah Lone
