Mandatory Minimum Sentencing Under BNS And Changing Sentencing Discretion

The Bharatiya Nyaya Sanhita, 2023 (hereinafter as “BNS”) increases reliance on mandatory minimum punishments to additional categories of offences by narrowing the space for judicial discretion in sentencing. Mandatory minimum punishment prescribes the lowest sentence that a court must impose for an offence. Where such a minimum applies, judicial discretion operates only within the range set by the legislature.

The Expanding Reach of Mandatory Minimum Punishment

Mandatory minimum punishment was not a defining feature of the erstwhile Indian Penal Code,1860 (“IPC” in brevity) as originally enacted. In the IPC, only Sections 397 and 398 which provided for armed robbery and dacoity employed the statutory formula of “shall not be less than” to fix minimum imprisonment terms, reflecting the perceived seriousness of violent property.

Over time, the use of minimum punishment expanded through subsequent criminal amendments and special laws like in case of NDPS Act, Prevention of Corruption Act, and POCSO. The BNS builds on this trend by incorporating minimums into additional provisions within the general criminal code.

For instance, Section 204 of BNS (corresponding to Section 170 of IPC) now provides minimum sentence of six months imprisonment and fine for offence of personating public servant. Section 105 of BNS (Section 304 of IPC) similarly mandates a minimum imprisonment of five year for offence of culpable homicide not amounting to murder. Some of the newly added provision like Section 95 for hiring or employing child to commit offence and Section 112 for petty organised crime also prescribes for minimum punishments. While such mandatory minimums may be appropriate for certain grave offences, they are now extended to categories where the degree of harm and culpability can vary that leaves limited room for proportionate sentencing.

Section 303(2) BNS and the Problem of Uniform Punishment

This extension is carried into offence of theft under the BNS. For example, the newly added proviso attached to Section 303(2) of the BNS, provides that the person must be punished with “community service” if the following conditions are met:

1. The value of the property is less than ₹5,000
2. The person is a first-time convict; and
3. He/she returns or restores the stolen property (or its equivalent value).

For subsequent convictions, however, the punishment is rigorous imprisonment for not less than one year (extendable up to five years) along with fine, irrespective of the property's value. This marks a shift from the IPC, which lacked such a mandatory minimum for repeat thefts.

The provision further expressly uses the word “rigorous”, which as defined under Section 4(c) means imprisonment with hard labour. Thus, it not only prescribes a minimum sentence but also specifies the precise nature of the punishment to be imposed.

The effect of the provision becomes apparent when the two situations are placed side by side. A first-time offender convicted of stealing property valued at, say ₹4,999 must necessarily be sentenced to community service (subject to restoration of the property). But if he/she is convicted again for theft of property of the any value, he/she must mandatorily undergo at least one year of rigorous imprisonment along with a fine.

This provision creates a sentencing cliff:

1. A first-time offender stealing ₹4999 faces community service alone
2. A second time offender stealing ₹1000 (illustrative amount) faces at least one-year rigorous imprisonment plus fine

This treats recidivism as absolute. The Court cannot ask:

• How much time elapsed between the two offences?
• Whether the second offence was trivial or compulsive?
• Whether rigorous imprisonment of one year plus fine would be justified?

The “proviso” thus adopts a split approach by prescribing community service for first-time theft involving petty amounts, while treating repetition of theft as warranting mandatory rigorous imprisonment regardless of value or the time gap between offences. Unlike several other offences where sentencing discretion remains intact even in cases of repetition of offence, this rigidity is likely to affect marginalised communities disproportionately, given that repeated involvement in petty theft often stems from economic insecurity.

Sentencing Rigidity and the Problem of Prison Overcrowding

The consequences of these sentencing choices do not stop at the courtroom door. They also extend to the capacity and functioning of the criminal justice system. As per the NCRB Prison Statistics India Report 2023, nearly three-quarters of the prison population consists of undertrial prisoners and prisons operate at about 120.8 per cent of their sanctioned capacity.

By narrowing judicial discretion to impose shorter or non-custodial sentences, mandatory minimums make imprisonment the default outcome even where lesser punishment may have sufficed. These figures also reflect the human and institutional costs of prolonged detention when sentencing laws leave courts with little room to adjust punishment to the facts and circumstances of a case.

Constitutional Limits of Mandatory Punishment and Article 142

The Supreme Court has upheld mandatory punishments in cases like Mohd Hashim v. State of Uttar Pradesh. However, in Nikhil Shivaji Golait, the Court agreed to examine the constitutional validity of Section 376DB, IPC (now Section 70(2) BNS), which mandates life imprisonment for the remainder of natural life for gang rape of a minor under 12, ) to the extent that it removes judicial discretion. As of today, the matter remains sub judice, focusing on proportionality without questioning the offence's gravity.

Whether the Supreme Court can invoke its constitutional powers under Article 142 to temper the rigour of mandatory sentencing provisions?

Supreme Court in State of Madhya Pradesh v. Vikram Das held that these powers cannot override statutory mandates, including minimum sentences, to avoid supplanting legislative intent. The court observed that “The constitutional powers under Article 142 of the Constitution cannot, in any way, be controlled by any statutory provision but at the same time, these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in any statute dealing expressly with the subject” (para 27).

Any constitutional challenge must therefore be tested against Articles 14 and 21, particularly on grounds of proportionality and manifest arbitrariness.

The expansion of mandatory minimum punishments under the Bharatiya Nyaya Sanhita marks a decisive legislative shift in sentencing policy. While such provisions advance compelling state interests, particularly in cases involving heinous offences, their widening reach places sentencing law at a delicate crossroads. As judicial discretion is increasingly constrained, the challenge is to ensure that statutory severity does not hollow out the constitutional guarantees of proportionality, fairness, and just procedure.

The author is an Advocate at Allahabad High Court. Views are personal