Punishment Without Certainty: A Constitutional Review of Sentencing Discretion under Section 10 of the Bharatiya Nyaya Sanhita,2023

Harshita Singh; Tapan Kumar Chandola

Punishment Without Certainty: A Constitutional Review of Sentencing Discretion under Section 10 of the Bharatiya Nyaya Sanhita,2023

Author(s)	Ms Harshita Singh, Prof. (Dr.) Tapan Kumar Chandola
Country	India
Abstract	The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS 2023) marks a significant milestone in India’s criminal justice reform, aiming to consolidate and modernize the law while introducing more nuanced mechanisms for justice delivery. Central to this reform is Section 10, which vests courts with broad discretion in sentencing, allowing judges to determine punishment based on the nature of the offence, the circumstances of the offender, and the broader societal impact. This emphasis on judicial flexibility is intended to promote proportionality and individualized justice, reflecting an understanding that rigid sentencing frameworks may fail to accommodate the complexities of contemporary offences and diverse offender profiles. However, while the flexibility granted under Section 10 is well-intentioned, it simultaneously raises critical concerns regarding consistency, predictability, and constitutional validity. The absence of structured guidelines or mandatory sentencing frameworks opens the door to potential arbitrariness, disparate sentencing outcomes, and unequal treatment of similarly situated offenders. These challenges resonate deeply with the constitutional guarantees enshrined under Articles 14, 20, and 21 of the Indian Constitution, which protect against arbitrariness, safeguard the right to life and personal liberty, and ensure fair treatment in criminal proceedings. The paper critically explores how Section 10 interacts with these constitutional principles, examining the scope of judicial discretion and its limits in preserving both individual rights and societal interests. The study further draws upon comparative jurisprudence to contextualize India’s approach. Jurisdictions such as the United States and the United Kingdom have developed structured sentencing frameworks that balance judicial discretion with the need for uniformity and predictability. In the U.S., federal and state sentencing guidelines provide ranges and considerations for judicial discretion while requiring justification for departures, ensuring transparency and fairness. Similarly, the U.K.’s Sentencing Council issues detailed guidelines that standardize sentencing based on harm, culpability, and mitigating circumstances, providing a mechanism for accountability without undermining judicial autonomy. By examining these models, the paper underscores the tension between individualized justice and legal certainty and highlights practical strategies to reconcile the two. This paper argues that the potential arbitrariness inherent in Section 10 can be mitigated through the adoption of structured sentencing guidelines, mandatory documentation of judicial reasoning, and appellate review mechanisms. These measures would allow courts to exercise discretion responsibly, promote consistency in sentencing outcomes, and maintain public confidence in the criminal justice system. Further, training programs for the judiciary on proportionality, restorative justice, and evidence-based sentencing can strengthen the implementation of Section 10 while ensuring alignment with constitutional mandates. In conclusion, while Section 10 reflects a progressive attempt to modernize sentencing and embrace individualized justice, the absence of guiding principles risks creating a system of punishment without certainty.‖ The study emphasizes that harmonizing judicial flexibility with predictable frameworks is essential to uphold the rule of law, protect constitutional rights, and enhance societal trust in the legal system. The findings advocate for a calibrated approach, combining discretion with structured oversight, thereby ensuring that the transformative promise of the BNS 2023 is realized in practice.
Keywords	Sentencing Discretion, Section 10, Bharatiya Nyaya Sanhita 2023, Constitutional Guarantees, Judicial Accountability
Published In	Volume 8, Issue 2, March-April 2026
Published On	2026-04-05

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Punishment Without Certainty: A Constitutional Review of Sentencing Discretion under Section 10 of the Bharatiya Nyaya Sanhita,2023

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