The Constitutionality of Enhanced Punishment: A Critical Study of Section 104 of Bharatiya Nyaya Sanhitha, 2023

ABSTRACT

“Every Saint has a past and every sinner has a future” — Justice V. R. Krishna Iyer made this statement when reflecting on the philosophy of punishment. Punishment is a necessary tool; without it, evil offences cannot be curbed and social order would collapse. Every legal system adopts different theories of punishment — some emphasise deterrence, others retribution, and many a mix of both. India’s legal system draws from various theories because the judiciary does not focus solely on deterrence but prioritises rehabilitation and reformation. In T.K. Gopal v. State of Karnataka,[1] it was held that punishments can take many approaches. Upon the commission of a crime, three types of reactions may arise:

1. Punitive approach: Views the criminal as a dangerous person who must be inflicted with punishment.
2. Therapeutic approach: Regards the criminal as a sick person requiring treatment.
3. Preventive approach: Seeks to eliminate the threat posed by such persons to society.

Since that case, the philosophy of penology has continued to evolve. It is no longer purely retributive or cruel but now stresses the reformation of the offender. In M.P. Jayaraj v. State of Karnataka,[2] the court stated that cruel and retributive punishments are counterproductive — they risk converting offenders who acted without full intent, or under compulsion, into hardened criminals beyond reform. In the words of George Bernard Shaw: “If you are to reform him, you must improve him, and men are not improved by injuries.”

With the enactment of the new criminal laws, the structure and severity of punishments has changed significantly. While the punishments for many offences have been enhanced, the most controversial and debated provision is Section 104 of the Bharatiya Nyaya Sanhitha, 2023. This section prescribes an enhanced punishment for certain categories of convicted murderers. Critics have raised diverse views about the constitutional validity of this provision. Before examining that constitutional question, however, it is important to understand the different theories of punishment that shape the criminal justice system.

I. Theories of Punishment

1. Deterrent Theory
Jeremy Bentham is considered the founder of this theory. The word deterrent has been defined as a thing that discourages or is intended to discourage someone from doing something. In this context, deterrence is used in the sense of stopping or preventing people from indulging in unlawful activities. The main aim is to create fear in the minds of potential offenders — either at the individual level or at the societal level — so as to instill a disinclination toward crime. There are two types of deterrence:

Specific deterrence operates at the level of the individual offender. Its primary idea is that when an offender is severely punished, they will not commit similar crimes in the future due to fear of repeat punishment. For example, a person sentenced to five years’ imprisonment is less likely to re-offend, having experienced the suffering firsthand.

General deterrence, on the other hand, is aimed at deterring the general public from committing the same offences by setting an example through the punishment of those already convicted. It focuses on preventing members of society from engaging in criminal acts by instilling awareness of consequences.

The deterrent theory is perfectly expressed in the words of Burnett J., who told a prisoner: “Thou art to be hanged not for having stolen a horse but in order that other horses may not be stolen.”

In Shyokaran and Ors. v. State of Rajasthan,[3] the court stated: “According to this theory, the criminal ‘justly deserves’ the harsh punishment for his criminal act. Since the criminal act is an onslaught on the stability and harmony of society, it was thought best to inflict the most deterrent punishment on the criminal so as to set an example for others.”

2. Retributive Theory
This theory was widely prevalent in earlier times, when punishments were often cruel and sometimes involved gruesome forms of death. The foundation of this theory is revenge — its main aim is to ensure that the offender suffers equally to, or even more than, the victim as a consequence of the offence. Many critics have called this theory barbaric and outdated, as it gives little to no importance to the reformative nature of human beings but solely focuses on inflicting punishment. In present-day India, this theory is not widely favoured. There is no scope for rehabilitation within it, and the Indian legal system believes in rehabilitation and second chances.

In Bishnu Deo Shaw v. State of West Bengal,[4] the court noted that the retributive theory is based on the biblical principle of “an eye for an eye and a tooth for a tooth” — illustrating how this theory supports the idea of repaying harm with equivalent harm.

3. Preventive Theory
This theory, also called the disablement theory, aims to prevent crimes rather than to seek revenge. It seeks to prevent potential crimes by physically incapacitating offenders or deterring them through severe punishments. Examples of preventive punishments include the death penalty, life imprisonment, and long-term incarceration. By incapacitating such criminals, society aims to protect itself. This theory was supported by utilitarian thinkers like Bentham, Mill, and Austin. Its primary focus is incapacitation, often at the expense of offender reform.

In A.K. Gopalan v. State of Madras,[5] the court upheld the constitutionality of preventive detention laws, recognising the State’s power to detain individuals to prevent further harm even without a formal trial — though this power has since been substantially constrained.

4. Reformative Theory
Also known as the rehabilitative theory, this approach treats punishment as a method to convert the offender into a law-abiding and productive citizen. It believes in the inherent good in every person, holding that no human is born a criminal. Every offender is given an opportunity to turn their life around and rectify their mistakes. This is typically achieved through correctional homes, juvenile homes, training schools, and reformatories. Aspects of the reformative theory can be observed in the Juvenile Justice (Care and Protection of Children) Act, 2015 [ Note to author: The article originally cited this as “2025” — please verify and correct if needed.] and the Probation of Offenders Act, 1958.

In Narotam Singh v. State of Punjab,[6] the Supreme Court stated: “The reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”

II. Present Penal Framework: Section 104, BNS 2023

The present legal framework governing punishments in India has undeniably become stricter with the enactment of the new criminal laws. As noted earlier, considerable debate has arisen regarding Section 104 of the Bharatiya Nyaya Sanhitha, 2023.

Section 104 bears resemblance to the erstwhile Section 303 of the Indian Penal Code, 1860, which mandated the death penalty for a person serving a sentence of life imprisonment who committed murder. That very provision was struck down by the Supreme Court in the landmark case of Mithu v. State of Punjab.[10] The Court held that a sentencing provision founded solely on the status of a convict — without affording judicial discretion or considering the individual facts and circumstances of the case — was arbitrary and violative of Articles 14 and 21 of the Constitution.

The Court observed that there was no rational basis for distinguishing between a person who commits murder while serving life imprisonment and a person who commits murder without being subject to such a sentence. Section 303 was ultimately declared unconstitutional and violative of the fundamental rights guaranteed by the Constitution. The judgment remains a significant precedent, reaffirming that sentencing must be individualised and that arbitrary classification in criminal law cannot withstand constitutional scrutiny.

Since Section 104 closely resembles Section 303 of the Indian Penal Code, 1860, it naturally raises similar constitutional concerns. This makes it imperative to carefully examine whether Section 104 of the BNS, 2023 also infringes upon fundamental rights.

III. Constitutional Validity of Section 104

Is it Violative of Article 14 of the Constitution?
Section 104 is argued by some to be violative of Article 14 of the Constitution, which guarantees equality before law and equal protection of law. The essence is that every person is equal before the law and no individual should be subjected to unequal treatment. At the same time, Article 14 permits classification, provided that classification satisfies the well-established test of intelligible differentia. This concept was laid down in State of West Bengal v. Anwar Ali Sarkar,[7] where the court held that any classification must be based on a clear and distinguishable difference, and that difference must have a rational nexus to the object sought to be achieved by the Act.

The contention is that Section 104 does not meet this standard. If the Section imposes enhanced punishment based solely on the status of the offender — that is, whether they are already serving a life sentence — such a distinction must be demonstrated to be reasonable and connected to the purpose of the law. Critics argue that Section 104 lacks that rational basis, rendering it constitutionally suspect.

Is it Violative of Article 21 of the Constitution?
Section 104 is further argued to be violative of Article 21 of the Constitution, which provides that no person shall be deprived of their life or personal liberty except according to the procedure established by law. Over the years, Article 21 has been interpreted very broadly by the Supreme Court. What was initially considered a narrow guarantee has gradually evolved into one of the most dynamic fundamental rights in the Constitution. It does not merely require that a law exist authorising deprivation of liberty — it requires that the law itself be just, fair, and reasonable. It cannot be arbitrary, excessive, or disproportionate in its operation.

The main criticism against Section 104 is that by mandating imprisonment for the remainder of a person’s natural life, it may effectively eliminate any meaningful possibility of remission, reform, or reintegration into society. This raises concerns about whether such a punishment respects individual dignity, which the Supreme Court has recognised as an essential component of Article 21. A law that imposes an extremely harsh punishment without leaving room for judicial discretion in appropriate cases may be viewed as unreasonable and disproportionate.

Furthermore, in Maneka Gandhi v. Union of India,[8] the Supreme Court expanded the scope of Article 21 by holding that any procedure which deprives a person of liberty must satisfy the standards of reasonableness and non-arbitrariness under Articles 14 and 19 of the Constitution as well. Therefore, the challenge to Section 104 is not only about the severity of punishment, but about whether the manner in which it operates aligns with constitutional requirements and whether such a mandatory and inflexible punishment accords with India’s constitutional ideals.

IV. From Section 303 IPC, 1860 to Section 104 BNS, 2023: A Historical Perspective

Section 104 of the Bharatiya Nyaya Sanhitha, 2023 is not the first instance of the legislature prescribing a special and harsher punishment for a particular category of convicted murderers. A similar provision existed as Section 303 of the Indian Penal Code, 1860, which mandated the death penalty for those already undergoing a sentence of life imprisonment for murder. It afforded the court no discretion — once the ingredients were satisfied, the death sentence was mandatory.

The Indian Penal Code, 1860 was enacted during the colonial era, at a time when penal policy was far more rigid and deterrence-oriented. After the Constitution came into force, many such provisions were examined for inconsistency with constitutional values. Over time, the Supreme Court evolved principles such as the “rarest of rare” doctrine — articulated in Bachan Singh v. State of Punjab[9] — holding that the death penalty cannot be imposed casually and must be reserved for the gravest crimes. Finally, in Mithu v. State of Punjab,[10] the Court held that the object of punishment is still to rehabilitate or reform the criminal, and that Section 303, by removing all judicial discretion, was arbitrary and unconstitutional. The debate has since continued: some regard such classification as essential to curbing criminal activity, while others maintain that the removal of judicial discretion is constitutionally untenable.

V. Conclusion

Ultimately, the constitutional question surrounding Section 104 of the Bharatiya Nyaya Sanhitha, 2023 reflects a broader tension between deterrence and reform — a tension that has animated Indian criminal jurisprudence for decades. The Constitution and the legal system are dynamic in nature; they continue to evolve with changing social realities. It is essential that the law keep pace with emerging offences and new forms of criminal activity. As society changes, so do the methods and patterns of crime, and the legal framework must adapt accordingly to remain effective.

The crime rate in India is not declining. As per recent available data, India’s crime rate stands at approximately 448.3 per 100,000 people [ Note to author: Please add a footnote citing the source of this statistic, e.g., NCRB Crime in India Report.], reflecting the continuing challenge before the criminal justice system. Punishments therefore play an important role not only in holding offenders accountable but also in deterring potential offenders.

The introduction of enhanced punishment provisions may at first glance seem excessive; however, when such provisions operate within constitutional safeguards, they may serve the legitimate objective of maintaining law and order. Therefore, while stricter punishments may be justified in certain circumstances, they must not completely foreclose the possibility of reform. Judicial discretion remains crucial. A balanced approach — combining deterrence with reformation, and guided by constitutional principles — is essential for a fair and humane criminal justice system.

References

[1] T.K. Gopal v. State of Karnataka, AIR 2000 SC 1699.
[2] M.P. Jayaraj v. State of Karnataka, ILR 1986 KAR 1460.
[3] Shyokaran and Ors. v. State of Rajasthan, 2008 CRI LJ 265.
[4] Bishnu Deo Shaw v. State of West Bengal, 1979 AIR 964.
[5] A.K. Gopalan v. State of Madras, 1950 AIR 27.
[6] Narotam Singh v. State of Punjab, AIR 1978 SC 1542.
[7] State of West Bengal v. Anwar Ali Sarkar, 1952 AIR 75.
[8] Maneka Gandhi v. Union of India, 1978 AIR 597.
[9] Bachan Singh v. State of Punjab, (1982) 3 SCC 24.
[10] Mithu v. State of Punjab, 1983 AIR 473, (1983) 2 SCR 690.