Punished Without Certainty? Why Section 10 of BNS Deserves Judicial Review

"In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all."

At first glance, this provision might appear to be a practical tool for resolving ambiguity in complex criminal cases. However, on closer analysis, Section 10 raises significant concerns from the perspective of criminal jurisprudence, constitutional law, and fair trial rights. It effectively allows a person to be punished even when the court cannot determine which specific offence has been committed—contradicting several long-established principles of criminal law and constitutional due process, potentially leading to unjust outcomes.

Section 10 of the BNS should be subjected to judicial review, and it may not pass constitutional scrutiny.

The Scope of Section 10

Section 10 applies when multiple charges are framed against an accused person. However, the evidence leads to the conclusion that the accused is guilty of some offence among those charged without certainty as to which one. Instead of acquitting the person due to lack of precise proof, the court is authorised to convict the person and impose punishment for the offence with the lowest penalty.

The intent behind such a clause may be to prevent guilty persons from escaping justice due to technical deficiencies in proof. However, the problem lies in how this intent undermines core values of the criminal justice system.

Principle of Specific Guilt

One of the fundamental doctrines of criminal jurisprudence is that a person must be convicted only upon proof of guilt for a specific offence. Every criminal offence requires the prosecution to establish both the actus reus (guilty act)^[2] and the mens rea (guilty mind) for that offence. Vague or approximate findings do not meet the legal standard.

Under Section 10, however, courts are allowed to punish an accused even when they cannot determine which offence among multiple alleged offences has been committed. This leads to a significant departure from the fundamental doctrine of criminal jurisprudence that a person must be convicted only upon proof of guilt for a specific offence. This dilution of the evidentiary threshold is a troubling shift from the established principle that criminal liability must be precise and established, not merely probable.

The Standard of Proof Beyond a Reasonable Doubt

Indian criminal law rests on the principle that an accused is presumed innocent until proven guilty. The burden of proof lies squarely with the prosecution, which must prove its case beyond a reasonable doubt.^[3]

Section 10 undermines this standard by accepting doubt as a basis for punishment. If the court itself declares that it is unsure about which offence has been committed, it is essentially acknowledging reasonable doubt. In such a case, the person should be acquitted, not punished. This violation of the standard of proof beyond a reasonable doubt is an apparent injustice.

The Supreme Court, in Sharad Birdhichand Sarda v. State of Maharashtra (1984)^[4], laid down that every link in the chain of circumstances must be proved beyond a reasonable doubt, and that suspicion, however strong, cannot substitute legal proof. Section 10 disregards this and permits courts to fall back on assumptions rather than evidence.

The Presumption of Innocence

Section 10 also contradicts the doctrine of presumption of innocence^[5], which Indian courts have recognised as a part of Article 21 of the Constitution. By enabling punishment even when the prosecution cannot prove the specific offence committed, Section 10 shifts the burden to the accused to disprove vague or general allegations.

Rather than letting the accused benefit from the ambiguity, the provision turns the ambiguity into a basis for conviction, though with a lesser sentence. This is incompatible with a rights-based criminal justice system and can violate the accused's rights.

Article 21 and the Right to a Fair Trial

Article 21 of the Constitution of India guarantees that no person shall be deprived of life or liberty except according to a procedure established by law. The Supreme Court, in Maneka Gandhi v. Union of India (1978)^[6], expanded the meaning of this phrase to mean that such a procedure must be just, fair, and reasonable.

Criminal conviction and sentencing without clear findings of guilt cannot be considered "just and fair." Section 10 allows for a sentence in the presence of judicial doubt, which undermines the integrity of criminal trials. Fair trial rights include knowing the exact charge, defending against it, and being convicted only when the charge is proved.

Permitting punishment based on uncertainty risks violating not just fair trial rights, but also the individual's dignity, which the court has repeatedly recognised as intrinsic to Article 21.

Section 10 and Judicial Reasoning

Judgments in criminal cases must provide clear, reasoned findings on each charge. Courts are required to assess evidence for each count and record specific conclusions. This ensures accountability and helps appellate courts examine the legality of the decision.

Section 10 introduces a shortcut. It allows courts to impose punishment even when their own judgment lacks specificity. This could weaken the discipline of judgment writing, where trial courts stop short of applying the rigour necessary to arrive at concrete findings of guilt, potentially undermining the judicial system's integrity.

Alternative Legal Approaches Exist

The problem Section 10 attempts to solve is not new. In cases involving multiple alternative charges like theft and criminal breach of trust, courts traditionally examine evidence for both and arrive at a specific conclusion.

If doubt remains, the well-established rule is that the benefit of doubt must go to the accused. This is a time-tested safeguard. Section 10 discards this in favour of punishment by approximation, which is unnecessary and dangerous.

International Practice and Comparative Jurisprudence

Globally, criminal law systems that respect civil liberties do not allow punishment when the specific charge is not proved. In jurisdictions like the UK, Canada, and the US, the principle of specificity and charge clarity is essential to due process.

International human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR), to which India is a party, also enshrine the right to be informed of the nature and cause of the accusation and to be convicted only upon lawful findings of guilt.

Section 10 stands in contrast to these international standards.

Why Judicial Review Is Necessary

The role of judicial review is to ensure that all laws, old or new must comply with the Constitution. Section 10 of the BNS raises several red flags:

• It permits punishment despite judicial doubt.
• It lowers the standard of proof required in criminal trials.
• It goes against the presumption of innocence.
• It conflicts with Article 21's guarantee of just and fair procedure.

These are serious concerns, and Section 10 could be challenged under Articles 21 and 14 for violating fundamental rights.

A court reviewing this provision would be justified in either striking it down or reading it down to ensure that punishment is not allowed unless there is clarity about the specific offence committed.

Section 10 of the Bharatiya Nyaya Sanhita is a seemingly procedural provision that carries wide ranging implications for the rights of the accused and the quality of criminal justice. It introduces a compromise inconsistent with criminal jurisprudence and constitutional law.

If criminal law begins to allow punishment based on uncertainty, it shifts from being a tool of justice to a tool of approximation. That is not a path a constitutional democracy should take.

A judicial review of this provision is not only justified but essential.

REFERENCES

[1]Bharatiya Nyaya Sanhita (2023) (India), available at www.mha.gov.in/sites/default/files/250883_english_01042024.pdf